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FILE - In this Sunday, Oct. 1, 2017 file photo, police officers stand along the Las Vegas Strip near the Mandalay Bay resort and casino during a shooting at a country music festival, in Las Vegas. Jay Purves and his colleagues at a private security firm manning the Route 91 Harvest festival Sunday night were a force of 200 unarmed first responders who lifted people over barriers, hid them behind pillars and under the stage, and funneled them to exits amid the panic. The guards are the first ones people inside an event go to when there is a problem. (AP Photo/John Locher, File) In this Oct. 1, 2017, file photo, police officers stand along the Las Vegas Strip near the Mandalay Bay resort and casino during a shooting at a country music festival, in Las Vegas. Jay Purves and his colleagues at a private security firm manning the Route 91 Harvest festival Sunday night were a force of 200 unarmed first responders who lifted people over barriers, hid them behind pillars and under the stage, and funneled them to exits amid the panic. The guards are the first ones people inside an event go to when there is a problem. AP Photo/John Locher

In the wake of MGM’s various lawsuits against victims of the Route 91 Harvest Festival, many have questioned the purpose and utility of the SAFETY Act. The SAFETY Act, garnering significant attention as a result of MGM’s legal maneuver, is as important today as when it was enacted and serves as a critical tool in our nation’s defense against terrorism. Thus we must be mindful that while we as a country reel from the horrific events in Las Vegas last October, we should not throw the proverbial baby out with the bathwater.

The SAFETY Act: What Is It?

Since MGM filed suit in various federal courts around the country last week, many have asked, what is the SAFETY Act and what is it intended to do?

The SAFETY Act stems from the Homeland Security Act of 2002, which of course was the result of the horrific events of 9/11. In that context, which must not be forgotten, there was a very real concern that in the wake of 9/11, security providers and developers would run from work that presented even an inkling of terror risk. After all, the liability stemming from 9/11 amounted to tens of billions of dollars, something no company could insure against or withstand if found liable. Moreover, the enormous potential liability would disincentivize companies from developing new products and services to counter the real and burgeoning threat of terrorism. As a result, Congress included in the Homeland Security Act a statute called the “Support Anti-terrorism by Fostering Effective Technologies Act of 2002” or SAFETY Act. The purpose of the SAFETY Act was to encourage the development and deployment of anti-terrorism products and services by creating import risk mitigation measures, including limitations on liability.

The SAFETY Act’s Practical Implications

Since its enactment, numerous companies and industries have recognized the value and importance of the SAFETY Act and thus have modeled their business around its protections. In turn, the Department of Homeland Security (and more specifically, the Office of SAFETY Act Implementation (OSAI)) have pushed the security industry further than one can imagine. Pre-SAFETY Act, any additional requirements imposed on a security provider or developer to deploy a more effective service or device came down to a cost-benefit analysis. Today, given the potential liability that may ensue from a terrorist act, taking whatever steps DHS and OSAI have pressed is a no-brainer, and, for that reason, we as a society are all better off. Indeed, having worked with a multitude of SAFETY Act–covered entities and with DHS and OSAI since the program’s inception, I can say that the security industry, as a direct result of the SAFETY Act, is stronger and more effective.

In order to obtain SAFETY Act protections, a company must go through a scrutinizing application process where the company must demonstrate that its product or service is effective in doing what the company says it does. Often this requires companies to prove a negative (i.e., it effectively prevents terrorism because no terrorist incident has occurred). However, simply saying something is the case has never been sufficient; rather, companies must provide information and data that demonstrate the product or services’ effectiveness. As a consequence, companies must formalize processes, develop new processes and programs, tighten hiring requirements, add training topics to their curriculum, and develop and implement quality assurance and quality control programs. Again, because of the rigors a company must go through to obtain SAFETY Act protections, the public at large benefits.

The SAFETY Act: Post-MGM Lawsuit Filings

At the heart of the MGM lawsuits is that eight different judges (by my count) are being asked whether the Route 91 shooting was an “act of terrorism,” as that term is defined by the SAFETY Act. Given that this is being presented to eight different, independent judges, it is very likely that they will come to differing conclusions, which of course will add no more clarity to the applicability of the SAFETY Act to MGM in the near term. Therefore, it may be some time before there is clarity, but what is clear today is that terrorism is no less a threat than it was on 9/11, and because of that, we must continue to foster an environment that allows us (as a nation) to draw upon all the resources and innovators available to deter, detect, mitigate, and thwart these potential bad actors. The SAFETY Act and the protections it provides to the frontline providers in this fight have been and will continue to be critical to that goal.

Dismas N. Locaria is a member of Venable’s government contracts group. His practice focuses on assisting government contractors in all aspects of working with the federal government. For more information, visit www.Venable.com.

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