In the wake of the Las Vegas shootings, MGM resorts is facing a barrage of lawsuits by victims claiming that the hotel was negligent in its security procedures. In an unusual response, the hotel has filed its own lawsuit against the victims. The MGM lawsuit is asking a court to rule that it is immune from suit because hotel security was handed by a vendor, Contemporary Services Corporation (CSC). CSC, the hotel argues, has been approved by the Department of Homeland Security (DHS) “for protecting against and responding to acts of mass injury and destruction” and, therefore, MGM is absolved from responsibility.
This pending action becomes relevant to the drone industry. MGM is referring to legal protections provided by the Support Anti-Terrorism by Fostering Effective Technologies Act of 2002, commonly known as “The Safety Act”. The Safety Act, passed in response to the 9/11 terrorist attacks, is intended to encourage the private sector to develop and implement anti-terrorist technologies by limiting the liability of companies that have such technology approved by DHS. The act defines anti-terrorist technology broadly to include products, services, equipment, or devices designed, developed, modified, or procured for the purpose of preventing, detecting, identifying, or deterring acts of terrorism or limiting the harm from such attacks.
Commercial drones are being increasingly used by terrorist groups and non-state actors. According to New America’s World of Drones database, Isis, Hezbollah, Hamas, Houthi rebels, Libyan rebels, various Syrian rebel groups, the Revolutionary Armed Forces of Colombia (Farc), and Colombian and Mexican drug cartels have all deployed drones. In order for terrorist groups to use drones for malicious purposes, they might purchase the aircraft and modify or disable its GPS or geo-fencing capabilities. Alternatively, a bad actor could hack and hijack an innocent person’s civilian drone, using it for malicious purposes such as colliding with a commercial airliner.
All of these developments make it vitally important for drone hardware and software companies, drone denial system entrepreneurs, and the enterprises that provide drone related services to take the threat of terrorism seriously and, just as seriously, the threat of liability should their security procedures prove inadequate to prevent or deter a terrorist attack. Moreover, any company that becomes Safety Act certified protects, not just themselves, but customers to whom they provide products and services. This is a very strong differentiator in a competitive market.
Safety Act certification is fairly complicated but, generally speaking, not prohibitively so. DHS must consider, among other factors, whether the technology is useful and effective, available for immediately deployment, whether there is a risk to the public if the technology is not deployed, and whether there is a chance that the company that has developed the technology will decline to field it without liability protection. The team at LeClairRyan is well-versed in Safety Act Certification and can help you navigate this process, allowing you to increase your bottom line, differentiate your product, and most importantly, prevent your product from being used by those who would seek to harm our nation.