Infotech and the law | Easing the pain of getting Safety Act protection

In August, the Homeland Security Department released its new application for manufacturers and service providers seeking protection from legal liability under the Safety Act.

The new application tracks the agency's final Safety Act rules, which it announced June 8.

It will accelerate the approval process for Safety Act qualification and certifications, DHS said.

Under the act, people injured by the defective performance of products and services that have been qualified as anti-terrorism technologies

» May bring their claims only in federal courts
» May only recover damages up to the amount of the provider's liability insurance coverage
» Cannot collect punitive damages
» Must have their damage awards reduced by any insurance or other compensation they get from other sources.

Certified technologies get additional protection from so-called government contractor defense, a practical bar to claims for injuries arising from defective performance of the product or service.

In addition to qualified and certified technologies, the final rule and new application let manufacturers and service providers apply for two classes of approval: inclusion under a "block" qualification or certification, and a developmental testing and evaluation (DTE) designation.

The agency intends to issue block approvals for classes of technologies that it determines to meet technical criteria for qualification or certification and are based on established performance criteria.

Applications from sellers of block qualified or certified technologies will get expedited review and will not have to demonstrate the technical merit of the underlying technology.

To date, DHS has issued no block designations of qualified or certified technologies.

The second new category of approvals involves promising technologies that have not yet demonstrated their efficacy in avoiding or responding to acts of terrorism.

A DTE designation may include limitations on technology's use and deployment and may be withdrawn at the department's discretion.

This new DTE designation lets the seller of a technology that does not meet the requirements of a qualified or certified technology get the act's protections from liability if it fails to work, according to DHS.

Because the agency will not test any technology proposed for DTE designation, its evaluation will be made solely on the applicant's representations.

The new application was designed partly to respond to criticisms that the original application process was too bureaucratic and intrusive. The agency appears to have responded successfully to those criticisms with its new procedures and application.

Potential applicants should be cautious about the block and DTE designations. The Safety Act reflected and required the department to engage in a balancing process between the risk of not using an effective technology because of liability concerns, and the risk that people or property would be damaged because it was either unsafe or ineffective.

The criteria for granting qualification and certification designations closely track the Safety Act's concern with this balance.

The new designations, however, offer liability protection without demonstration that a specific implementation of a technology is safe and effective. Whether a court will agree that these new designations are consistent with the balancing of interests in the act will be an open question until the technology is tested by real events.

Jonathan Cain is a member of the law firm Mintz Levin Cohn Ferris Glovsky & Popeo PC in Reston, Va. The opinions expressed in this article are his. He can be reached by e-mail at jcain@mintz.com.