Public SAFETY Can Bring Private Safety

The Regulations To Support Anti-Terrorism By Fostering Effective Technologies (the SAFETY Act) was passed as part of the Homeland Security Act to encourage potential manufacturers or sellers of anti-terrorism technologies (ATTs) to develop and sell technologies that could reduce the risk or mitigate the effects of large-scale terrorist events by limiting legal liabilities that might otherwise be faced by such developers and sellers for injuries and losses sustained in an act of terrorism. The Act creates certain liability limitations for “claims arising out of, relating to, or resulting from an act of terrorism” where qualified ATTs have been deployed. The Act does not limit liability for harms caused by ATTs when no act of terrorism has occurred.

Reduced to its simplest terms, the Act will allow the developer or provider of goods or services that qualify, so-called Qualified Anti-terrorism Technologies (QATTs), to cap their liability in an amount equal to that covered by their insurance policies. The government will impose limitations on the amount of liability protection QATTs will be required to carry.

There are a number of other legal benefits that QATTs are afforded under the Act that make it attractive to apply for the QATT designation — including the possibility of becoming eligible for so-called “government contractor defense,” which can totally eliminate negligence liability for the approved technology.

The Act is still in its developmental stages in terms of just how tightly qualified companies will be insulated from liability to third-party plaintiffs under varying circumstances. However, it promises to be of tremendous advantage to companies that are skittish about entering the anti-terrorism marketplace because of potential liability for their products and services employed in defending against a terrorist act. For security companies and those who employ them for personal injury and property damage, liability can be crushing under such circumstances. The number and scope of the negligence claims arising out of the 9/11 attacks are an example of why such claims would have a chilling effect on vendors and users of crime prevention technologies without the protection of capped negligence liability.

Aviation Security
The first major alteration in airport security likely to be undertaken since the implementation of the Aviation and Transportation Security Act (ATSA) is now on the horizon. It is likely that Transportation Security Administration (TSA) screeners could be replaced by private contractors who have become eligible under the opt-out provision of ATSA. One of the major drawbacks to re-entering the market for private security companies, who lost their lucrative airport screening contracts when the law was passed, has been the spectre of third-party liability law suits such as those now facing the companies who staffed screening stations on 9/11. Plaintiffs’ claims against screening companies allege that — but for the negligence of those screening contractors in allowing the 19 terrorists to board the hijacked airliners with weapons — the tragedies of that day could have been prevented. Whether those claims will be successful is yet to be determined.

The issue of liability for the criminal acts of third persons that have resulted in death or injury to innocent people lawfully on property open to the public has been a contentious one. It has also been a question that has been subjected to differing interpretations in the nation’s courts. It is generally recognized, however, that persons on property open to the public have a right to expect that reasonable security against reasonably foreseeable crime risks will be provided for them by owners and operators of those facilities. It is the nature and extent of security that remains subject to litigation.

In the transportation industry, where a special relationship exists between passengers and operators, the potential liability for negligent security has had a jarring effect on security providers. A major concern of airport authorities when it comes to converting from federal workers to private companies for passenger and baggage screening has been the potential liability they could face in the event of a future act of airport terrorism, a risk certainly more foreseeable now than it was on 9/11. With the passage of the SAFETY Act and the naming of the first QATT security service providers, airport operators and security companies can feel more confident about transferring the screening responsibilities from the federal workers employed by TSA to employees of private companies. However, the benefits and disadvantages of their decision raise other questions about which there is not universal agreement.

The SAFETY Act caps liability not only for the service provider, but also for the user of the service, and would provide the insulation from security negligence liability that has made such a changeover less attractive. With the opening of new opportunities for private security contractors at airports, it is likely that more companies will seek QATT certification from the Department of Homeland Security (DHS), creating opportunities not only to upgrade screening services, but also to fill other, long-overdue airport security needs. These include airport perimeter patrols to secure against airport penetrations and against the establishment of possible launching sites for shoulder-held missiles. In addition, security personnel may also be added to secure the ramp-side of airports, where some 900 thousand workers now have unfettered access to aircraft, baggage, and cargo, creating the opportunity for the introduction of weapons, explosives, and contraband onto aircraft. Both perimeter and ramp security improvements have been mandated under ATSA, but thus far have not been provided.

Crime Prevention
The potential benefits for the general public from anti-terrorism technologies may be far greater than anticipated when the SAFETY Act was passed. Although the Act limits its liability protections to technologies designed to identify, prevent, and respond to acts of terrorism, it is likely that such technologies will promote advances in general crime prevention activities as well. A potential argument can be made that certified anti-terrorism technology that is employed in the prevention of criminal activity not classified as an act of terrorism should nevertheless provide liability limitations as well. Once a QATT designation is granted by the DHS, it is logical that the use of the technology in crime prevention on any level should carry with it the same liability protection, since the reasonableness of the product or service has already been established as meeting a high standard of security.

The use of QATTs in fighting crime may open new technologies that the nation’s schools, institutions, workplaces, and other places of public accommodation have been clamoring for. Even if such technologies do not carry with them capped liability when used in situations not involving terrorism, it is likely that the weight of the designation will be enough to overcome plaintiffs’ negligence liability claims. Defendants in such cases are not required to prevent all crimes; and their potential liability extends only to the provision of reasonable security against reasonably foreseeable crime risks. Technologies designed to prevent against terrorism risks are likely to include protection against most crime vulnerabilities, and as such, are likely to offer a formidable obstacle against most negligence claims. The fact that such technologies may also include opportunities for lower insurance premiums for those who have a duty to provide reasonable security against crime risks should also create additional resources for either further security enhancements or overall security cost savings.

By the promulgation of the SAFETY Act, government has provided a much-needed opportunity for an overall revitalization of private-sector security at a time when the nation’s homeland security needs are at their greatest. The act has ramifications for public safety that reach beyond the benefits anticipated by new technologies for fighting terrorism alone. The nation has developed a new consciousness about the need to provide for personal and family security as a tenet of individual responsibility. Many of our nation’s institutions have been tested during this period of heightened sensitivity to terrorist attack, and have been found wanting, not only in their ability to protect against such attacks, but also in their ability to provide protection against crime in general.

With the focus of our attention on security at home, in our schools, at the workplace, and even in recreational venues such as athletic arenas, we have become sensitized to the need to protect ourselves, and for the need for sophisticated technologies for doing so. The SAFETY Act will hopefully encourage new thinking about how our overall safety requirements can be better met.

The assault upon Americans at home has had manifestations outside of the scope of international terrorism. The almost daily abduction of the nation’s children — not only from playgrounds and street corners, but also from their beds while they sleep — calls out for better home security that all can afford. Our inability to keep track of those with known proclivities for committing such crimes is equally compelling. The failure of our institutions to detect school and workplace violence in advance and prevent its occurrence is unexplainable at time when technology has developed tools for analyzing aberrant behavior before it goes out of control. The need to monitor potentially dangerous conduct in places of public accommodation and develop protocols for deterring it also raises questions about our dedication to modern crime prevention programs.

All of these and many other crime issues are awaiting solutions, and the SAFETY Act may provide the needed impetus for new and better ways to secure America from within as well as without.

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