The Homeland Security Department today proposed regulations to shield technology vendors from liability for domestic defense products that cause unintended damage, injury or death.
The regulations would implement the Support Antiterrorism by Fostering Effective Technologies Act of 2002. That law, a subtitle of the Homeland Security Act of 2002, aims to spur development of antiterrorism technologies by protecting vendors.
Under the SAFETY law and regulation, cases against vendors of technologies chosen by the department for antiterrorism deployment would be heard in federal rather than state courts.
Critics of the tort law system contend that judges and juries in some state courts, such as West Virginia and the deep South, unfairly favor plaintiffs in liability cases.
The protection would also expand the so-called government contractor defense. Otherwise, “many companies may not invest in potential lifesaving technologies to protect Americans,” the department said in an announcement.
The DHS secretary would have broad discretion to decide whether to shield an antiterrorism technology from liability.
Joe Draham, vice president for government relations and congressional affairs at GTSI of Chantilly, Va., praised the proposed regulation.
“It will spur the introduction of innovative technologies within the community, particularly for biometrics and intrusion detection sensors,” Draham said. “For companies like GTSI, it will provide a broader spectrum of offerings that GTSI in turn can integrate into more complex solutions for the department.”
Larry Allen, executive vice president of Washington’s Coalition for Government Procurement, said he considers the proposal an important part of encouraging companies to provide homeland security technology.
“A lot of conferences on homeland security or rebuilding Iraq have emphasized the liability issue,” Allen said. “There are some who say the current government contractor defense is not broad enough to cover the prevailing circumstances.”
The reasons, Allen said, are litigiousness and the different ways contractors are asked to support the government. Manufacturers may not want to offer cutting-edge technologies that “are in the testing stage and may blow up on the launch pad,” he said.
But Jim Lewis, director of the Technology and Public Policy Program at the Center for Strategic and International Studies in Washington, questioned the effectiveness of the law and proposed regulation.
“I don’t know if it will be so much of a stimulus because people were already so interested in this market,” he said. “In and of itself it is not necessarily bad. Putting caps on liability is something you always have to wrestle with. Things are prone to wind up in court in ways that hamper your efforts,” he said.
Lewis added, “If there ever is a case, it will end up being tested in court because you want to eliminate frivolous lawsuits, but you don’t want to eliminate [liability in] those cases where there has been some actual harm.”
DHS invites the public to comment on the proposed regulation for the next 30 days via the Docket Management System at http://dms.dot.gov .
