Protecting Anti-terrorism Technologies in the US: The "Safety Act" of 2002

Following the events of September 11, 2001, all insurance for terrorism-related risks became very expensive. In the US, the Safety Act, which was enacted as part of the Homeland Security Act, responded by attempting to protect the incentive to manufacture effective anti-terrorism devices such as gas masks and emergency radios – i.e. products designated as "Qualified Antiterrorism Technologies" (QATs) by the Secretary for Homeland Security. The Department of Homeland Security (DHS) regulations set out a number of criteria for a given technology to be classified a QAT, including the basic one that the technology must be deemed useful and effective. As an additional requirement, there must be the possibility that its deployment will give rise to extraordinarily large or unquantifiable third-party liability; and be such that the failure to deploy it would increase the risk to the public by some significant order of magnitude. A manufacturer of a QAT receives such protection as the right to invoke the equivalent of the "government contractor defence", and a limit on the damages that may be recovered by a successful plaintiff. For example, no punitive damages can be recovered at all, and a plaintiff can only recover non-economic damages if physical harm was suffered. Even then, the plaintiff can only recover damages proportionate to the degree of responsibility of the QAT's failure for the plaintiff's injuries. While the premise behind the Safety Act is a desirable one, many observers have argued that the implementation of the premise is flawed. Perhaps the fact that many manufacturers have not chosen to submit their products to the DHS to become a QAT indicates that the real significance of the Safety Act is primarily symbolic. For a recent news story, see: http://writ.news.findlaw.com/sebok/20031208.html. Summary by: Tina Nanov