Campus security officials across the country are continually being pressed to provide answers on how they can quickly and efficiently increase security at their facilities. The challenges associated with such efforts are significant, as budgets are limited and the number of vendors offering solutions (both complete and partial) grows every day.

This leads to the nearly impossible challenge of trying to determine not only what solutions would be appropriate, but also how to best choose among the many security vendors in the marketplace. A legitimate concern any security manager has at this point is knowing what should be invested in so as to minimize the inevitable lawsuits that will follow acts of violence on a campus, particularly if the event is committed by terrorists.

Fortunately, there is a method immediately available to help security managers at schools, universities and hospitals select security products and services as well as obtain liability protections. Under the Support Anti-Terrorism By Fostering Effective Technology (SAFETY) Act of 2002, providers and users of products or services that can be used to detect, defend against, or respond to acts of terrorism may receive strong liability protections. These protections include the ability to dramatically limit or even eliminate claims arising out of the use of products or services intended to help combat terrorist attacks.

SAFETY Act Applies to Products and Services

The SAFETY Act was created in order to address concerns that buying or selling items for use against terrorism would bring with it the potential for devastating civil liability. Such fears are actually quite valid given a number of decisions in U.S. courts holding that entities providing security during a number of terrorist events (9/11, 1993 World Trade Center bombing and 1996 Olympic Park bombing) could be or actually are liable for damages arising out of those events. Such concerns existed across the entire spectrum of buyers and sellers, as both public and private entities have had massive claims filed against them following terrorist events.

In response to such fears, Congress established a mechanism to allow for products and services to undergo a rigorous technical review that, if successfully completed, would entitle equipment users and providers to enjoy a measure of liability protection. Under the SAFETY Act, sellers of “anti-terror technologies” (a term that encompasses both products and services) may apply for SAFETY Act approval from the U.S. Department of Homeland Security (DHS).

If SAFETY Act approval is granted, sellers and customers of anti-terror products and services are protected from liability arising out of terrorist attacks. More specifically, sellers of the technology have the right to be dismissed from liability claims if the plaintiff cannot prove the seller committed fraud or misconduct in the application process. Customers, meanwhile, are to be relieved immediately from any such claims.

SAFETY Act protections are awarded only after a thorough review of the seller’s product or service has been conducted by DHS, and the protections apply regardless of whether the customer is a government or private entity. These incentives were designed to help ensure as many tools as possible are deployed to deter, defend against and defeat terrorist activities. Essentially, any product or service that has an anti-terror application is eligible for protections under the SAFETY Act, with examples including security guard services, explosive sniffing canines, vulnerability assessment services, training services and camera systems.

Given the pressure on campus security officials across the nation to quickly review, update and improve security measures, and determine what additional measures can be taken, the SAFETY Act could serve as an excellent guide to available solutions. Given that so much could blindly be invested in security, and that even with such investments, lawsuits following a massive event are likely, an important consideration to review is how campuses at all levels can take advantage of the SAFETY Act.

There are many ways to do so, and using any of the following approaches can significantly help mitigate the potential liability associated with a terrorist attack.

Purchase SAFETY Act-approved Products

Campus security officials can buy security products and services from SAFETY Act-approved companies so they (a) can take advantage of the seller’s SAFETY Act liability protections and (b) can enjoy the level of comfort associated with knowing they are using items that have been thoroughly vetted by DHS.

As noted above, a wide range of SAFETY Act-approved products and services are available, some of which are designed specifically for campus environments. Campus security officials can review the list of SAFETY Act-approved products and services to determine if any meet their needs. If no products or services are appropriate, the campus security official can ask security providers to apply for SAFETY Act protections.

This is a useful approach to take for both existing security providers and potential security providers, particularly since SAFETY Act approvals can be retroactive (meaning that SAFETY Act protections can apply to products or services that were deployed for years before they received SAFETY Act liability protections).

Hospital, school and university security officials can also file what is known as a “prequalification” application. Under that process, security officials can work with DHS to ensure whoever wins a solicitation for security services is guaranteed to receive a SAFETY Act approval.

This is accomplished by working with DHS to explain the details of a pending procurement, including how the eventual winner will be selected. If DHS determines the procurement winner will be selected using reliable methods to ensure effectiveness and efficiency, a prequalification will be issued. That will allow the eventual winner to receive SAFETY Act protections (albeit for this one procurement).

Apply Directly for Protections When Appropriate

Campus security officials can apply themselves for SAFETY Act protections for any security services they provide internally, such as guards, evacuation training and the like. Many potential applicants make the mistake of thinking they can only get the SAFETY Act protections by purchasing a product or service. That is simply not the case. Any entity is free to file its own applications. Should it be successful, it too will enjoy all the liability protections offered by the SAFETY Act.

The advantage of this approach is that campus public safety officials will be able to obtain a fairly comprehensive set of liability protections, including ones that would encompass services provided by in-house security as well as those contracted out. While there is certainly no problem in obtaining liability protections through the purchase of individually approved SAFETY Act Certified products or services, filing an application that would apply to the comprehensive security solution offered at the campus itself will certainly cast a broader liability protection net. Thus, campus security managers should take a serious look at applying for the SAFETY Act themselves.

Integrate Act Into Construction Plans

Anytime a new facility is under construction or is being considered, campus security officials should contemplate integrating SAFETY Act protections into its planning. This can take many forms, such as including a SAFETY Act requirement in any bidding documents.

Campus law enforcement should even consider approaching DHS while in the planning stages to review any proposed security operations and mitigation measures. The benefit of doing so is that the campus security official may have an opportunity to expedite the SAFETY Act review and approval process.

Apply for Protections for Special Events

Any time a campus is in the running to host a major event, its security officials should also consider obtaining SAFETY Act protections for that parti
cular event. This is especially true if the nature of event means that some novel or unusual security measures might be deployed as a precautionary measure (examples would include a major conference or sporting event).

SAFETY Act Reviews Limit Campuses’ Exposure

Successful security operations in a campus environment will always be difficult, and the pressure to ramp up security following the shootings at Virginia Tech makes it especially clear that campus security officials have a difficult task before them. Unfortunately, it is also clear that no matter what steps are taken beforehand, an inevitable result of any major event will be a spate of lawsuits looking to assign massive liability to any and all involved.

Given that campus security officials must plan for a wide range of worst-case scenarios, doing so in a way that provides for the use of thoroughly reviewed technologies and services, while offering a measure of liability protection should be an attractive option. Campuses everywhere would be well served by considering the SAFETY Act when deciding what steps to take in order to help avoid tragedies.

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            7 Best Practices When Applying for SAFETY Act Protections

One issue many potential SAFETY Act applicants have is that they fear the process is too involved or burdensome, leading them to pass up on opportunities to apply. While the SAFETY Act application process is somewhat lengthy and involved, it is certainly one that can be mastered. Below are some suggestions for campus security officials to consider when thinking about filing a SAFETY Act application:

1. Determine whether you are ready to file an application: Carefully consider whether service is ready for an application. If your security services are not supported by documents (procedures and policies) it may not be appropriate to file an application. Do not, however, fall into the trap of thinking that gaps in documentation mean that no application should be filed. To the contrary – as long as such gaps are not overly dramatic, the application could still proceed.

2. Understand that an application will involve work: Filing a SAFETY Act application is not an easy process. Even under the best of circumstances, a significant amount of effort (and data) will be needed to present DHS with an accurate picture of what your technology or service does. An applicant must be ready to commit resources to the project.

3. Know what is eligible for protection and inclusion in an application: Campus security officials should carefully consider what exactly it is they want approved in the SAFETY Act application. Do not include dissimilar technologies or services – that will only lead to rejection.

4. Take your time: The SAFETY Act application process is a complicated one. Applicants should be prepared to take a reasonable amount of time to draft and review applications. Quickly prepared applications or ones that are light on details will likely not be successful.

5. Make sure to include supporting evidence: The application must contain a good discussion of why SAFETY Act protection is warranted. Simply saying “it fights terrorism” or “we deserve it” is not enough. DHS officials must understand your product/service and how it works in order for approvals to be awarded.

6. Work with DHS: The SAFETY Act can be an imposing task – the questions are complicated and not always obvious. Do not be afraid to engage the SAFETY Act Office in a dialogue – their staff is there to help.

7. Engage outside assistance as appropriate: Even if you work with DHS, you still may not see all the obvious questions and pitfalls. Experts can assist in the drafting and filing of applications. Do not be reticent about retaining outside assistance. They can help you understand the process and determine what course an application should take. More than likely, the cost of retaining an outside expert will be recouped by virtue of obtaining a broad approval.

Brian E. Finch Esq. is the head of the Homeland Security Practice Group at Dickstein Shapiro LLP. He can be reached at finchb@dicksteinshapiro.com.

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