In a recent speech, Homeland Security Secretary Janet Napolitano extolled the virtues of sharing security technology with US government partners. The Christmas Day bomber, who boarded a plane in Amsterdam and tried to blow it up over Detroit, demonstrated once again that homeland security often begins abroad. And Napolitano accordingly has emphasized that security technology must be shared among the US government, foreign governments, and private industry. She said that the US government must “deploy intelligence–based targeting, state–of–the–art technologies, and proactive screening measures to deter and disrupt terrorism.”
This is strategically sound, but at the operational level, there is work to be done.
One important element of this work concerns legal liability. Congress and the Department of Homeland Security (DHS) have recognized that fear of legal liability is often an impediment to the development and use of anti–terrorism technology. Suppose someone creates a good security product but, in a terrorist attack, the security product does not prevent all injuries. An injured person may sue alleging that the security product should have worked better.
Fear of such suits may prevent the creation of the product in the first place. So, to limit liability and facilitate technology development, Congress passed and the Department administers the SAFETY Act (that is, the “Support Anti–terrorism by Fostering Effective Technologies Act of 2002″). Under this Act, the Department’s approval of a technology—and a “technology” can include not only hardware, software or other devices but also services like guards, monitoring systems, or even analytical work—can protect the technology developer or user from liability.
To enhance technology sharing with foreign governments, the liability protections should follow the sharing and use of approved technologies overseas. The Department has said that liability protections for developers and users of approved technologies can apply in the event of a terrorist attack even if the attack occurs outside the United States, as long as US persons or businesses are affected.
But in the event of an overseas attack, the affected persons may sue in foreign courts to circumvent SAFETY Act protections. So, the Department should seek agreements with foreign governments to extend liability protections to foreign legal systems, which would facilitate sales of security products and services to foreign governments. Private industry should assist the Department’s efforts on this score.
That would be one operational step along the smart path outlined by Secretary Napolitano.