By Mickey McCarter, HS Today

Mar 26, 2009

Liability protection, as offered by the Department of Homeland Security (DHS), for products and services intended to combat terrorism recently reached a milestone of 275 individual offerings covered.

The Support Anti-Terrorism by Fostering Effective Technology (SAFETY) Act has come a long way since its implementation in 2003, providing liability coverage to a good mix of small and large companies in a field fairly evenly divided between goods and services, noted Dave McWhorter, a principal with Catalyst Partners.

“I’m surprised that there aren’t a lot more technologies covered under the act, but the ones there are a good mix of everything,” McWhorter told

On 9/11, McWhorter worked for the Institute for Defense Analyses, which was contacted by elements of DHS for assistance implementing the SAFETY Act after Congress passed it. He was involved in creating the original application kit, producing an evaluation process for applications, and other tasks to get the Act off the ground. He now works as a consultant for companies working with the SAFETY Act, among other homeland security issues.

McWhorter believes the SAFETY Act serves a vital purpose, particularly since improvements to the Act carried out by a regulation in 2006.

“It’s crucial to strike a fair balance,” McWhorter stated. “On one hand, you want to ensure that these sorts of technologies are developed and deployed in the public sector. That’s what is best for the public. It’s unfair to ask a company that perhaps generates 1 percent of its revenue from a technology that exposes them to an unquantifiable amount of liability. A lot of these companies simply would not do it.

“On one hand, the amount of money the public could recoup from one of these companies covered under the SAFETY Act is limited. On the other hand, there are now 275 technologies on the streets and in the public sector, many of which would not be out there if not for the SAFETY Act,” he added. “So it’s a fine balance.”

Still, some pieces of the SAFETY Act would provide greater benefit if they were more widely embraced, McWhorter argued. For example, the revisions to the Act in 2006 introduced the capability for federal government procurement offices to receive pre-qualification for SAFETY Act protection for any product or service they acquire. The pre-designation significantly shortens the application process for actually obtaining SAFETY Act protection.

“It is supposed to be a government-to-government interaction. I would like to see more procurement offices take advantage of that opportunity and get the products and services that they procure pre-designated,” McWhorter commented.

The 2006 revisions also shortened the evaluation process timeline to 120 days and streamlined the application itself. They added a new category of SAFETY Act designation called a development test and evaluation designation, designed for technologies that go through a prototype phase. Companies would field those prototypes in the public sector to collect data to determine their effectiveness before they can then receive a full SAFETY Act designation.

These changes were productive and assisted both government and business, McWhorter said.

Of course, some observers might be surprised at some of the organizations that have received a SAFETY Act designation. For example, the National Football League (NFL) recently received certification for its stadium security practices.

“For the SAFETY Act, you don’t have to put out something that is 100 percent for fighting terrorists,” McWhorter explained. “For instance, a security service at a shopping center probably worries about loitering, trespassing, shoplifting and graffiti, much more so on a daily basis than they need to worry about a terrorist. Nevertheless, part of their mission is to watch out for the truck bombs and the backpacks left behind.

“In the case of the NFL, its main mission has nothing to do with fighting terrorism. But they do have best practices for stadium security. It is something that all of the stadiums must comply with. It is those security practices that received coverage because they do in fact work to deter and detect acts of terrorism,” he said.

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