- The Washington Times - Sunday, October 19, 2003

Makers of antiterrorist technology are lining up to register under a new government program that provides them with immunity from lawsuits if their products don’t work during a terrorist attack.

Supporters say the program, buried in a little-noticed section of last year’s Homeland Security Act, is vital in getting companies to develop and sell new technologies.

“The law is absolutely necessary,” government contract attorney Jacob B. Pankowski said. Without it, he said, “fears of unlimited liability would make industry reluctant to introduce antiterrorist goods and services into the marketplace.”

The Department of Homeland Security’s undersecretary for technology, Charles E. McQueary, told UPI in an interview that, “It’s important to the country to try to take advantage of these technologies.”

But opponents paint the law as a get-out-of-court-free card for the makers of inferior products, and as a back-door step toward the administration’s declared goal of tort reform.

“The American public is going to be shocked when they realize how much this immunizes companies,” Joan Claybrook, president of Ralph Nader’s Public Citizen lobby group, told Congressional Quarterly recently.

Last week, the Department of Homeland Security began accepting applications from companies for their products and services to be either “designated” or “certified” by officials under the provisions of the Support Anti-Terrorism by Fostering Effective Technologies, or SAFETY Act, passed last year by Congress as part of the law setting up the new department.

Any technology considered effective, necessary and available immediately can be “designated” if officials believe the risk of liability might stop the manufacturer from taking it to market.

Designation limits the liability in lawsuits “arising out of, relating to, or resulting from an act of terrorism” of the makers, sellers and users of products in several ways.

In addition, if the department decides that — as well as meeting the criteria for designation — products are safe for use as intended, they can be “certified.”

Certification, Mr. Pankowski said, grants a complete immunity on a “very broad” basis. “It basically covers any kind of lawsuit.”

The only way the maker, seller or user of a certified technology can be sued is if it can be proved that they fraudulently obtained the certification, by providing the department with bogus or misleading information, or that they didn’t make the product to their own specifications.

Mr. McQueary said he is aware of concerns that the act goes too far.

“If someone is hurt in some way, you’re denying them the opportunity for judicial recourse, which this country is built upon,” he said. “There’s a balance that has to be struck. Both sides of the equation are important.”


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