Monday, August 24, 2009

Homeland is a Battleground Without Liability

One of the earliest indications that the Department of Homeland Security was going to be a font contracts and opportunities for the defense and security industries was Support Anti-terrorism by Fostering Effective Technologies Act of 2002, otherwise known as the SAFETY Act. Passed immediately after the Sept. 11 attacks as part of the legislation creating DHS, the Safety Act basically provides a liability shield to manufacturers of anti-terrorism technology. According to DHS, the Safety Act is intended to “encourage the development and deployment of new and innovative anti-terrorism products and services.” This government liability protection also covers software and other intellectual property.
It fosters this development not through government contracts but through government guarantees—shielding technology providers from liability lawsuits in the event of product failure during a terrorist attack.
DHS has already put its liability-free stamp of approval -- the Qualified Anti-Terrorism Technology designation -- on more than 300 counterterrorism technologies.
The Safety Act product is the American Anti-Ram (AAR) vehicle barricade. It is a product of American Defense Systems (ADSI), which sells advanced transparent and opaque armor, architectural hardening and security products for defense and homeland security.
The business-friendly measure to boost the security industry has received little notice or criticism outside the booming homeland security industry. However, one legal critique of the Safety Act likens it the system used by the Pentagon to obstruct liability suits against defense contractors. According to a legal analysis in FindLaw:
“The government contractor defense used to simply mean this: When a soldiers is killed based on a product defect -- say, a faulty gun -- he cannot sue the Pentagon's suppliers. Now it also means this: When a civilian is killed based on a defect in a Qualified Anti-Terrorism Technology -- say, a gas mask -- he cannot sue the mask's manufacturer, even if it is a purely civilian company.
“The symbolic message is clear. America is a battlefield. We are all soldiers, even civilians. And civilian suppliers of antiterrorism technologies are like Pentagon suppliers, for they too prepare us for war -- the war on terror.
“We are no longer consumers buying products who can then file product liability suits. We are soldiers provisioning ourselves with supplies, and we do so at own risk; we cannot sue our suppliers, for this is war, and they must continue to produce our supplies at all costs….
“But there is a crucial problem with the way this logic plays itself out in the SAFETY Act. “If civilians are like soldiers, then the government is treating its "soldiers" shabbily, when it passes measures like the SAFETY Act. In the military, injured soldiers benefit from pensions and medical care (and are provided with protective technologies; they do not purchase them). Thus, what the government takes away with one hand -- the chance to sue -- it gives with the other.
“But civilians who are injured by defective products, under the SAFETY Act, have their rights to sue taken away, without getting anything in return. That's not right. By comparison, the September 11 Victims' Compensation Fund, though it limited the right to sue, gave the victims of that attack something in return: A compensation award.”

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