The Department of Homeland Security (DHS) recently granted the National Football League (NFL) full immunity from suit in the event that its security measures fail to prevent a terrorist attack.

Under the Support Anti-Terrorism by Fostering Effective Technologies or SAFETY Act, part of the Homeland Security Act of 2002, Congress enacted several liability protections for providers of anti-terrorism technologies. The stated purpose of the Act is “to ensure that the threat of liability does not deter potential manufacturers or Sellers of anti-terrorism technologies from developing and commercializing technologies that could save lives.” Through a system of “risk management” and a system of “litigation management,” the SAFETY Act incentivizes the development and deployment of anti-terrorism technologies.

The law extends to companies whose services or equipment has been approved by DHS as being effective in anti-terrorism and prohibits them from being sued if terrorists attack a site they are protecting. When technology is designated as a Qualified Anti-Terrorism Technology (QATT), the Seller of the QATT is granted limited liability for all claims arising out of the deployment of the QATT with respect to an act of terrorism.

On December 19, 2008, DHS certified the NFL Best Practices for Stadium Security, “a set of guidelines for stadium security management designed to deter and defend against terrorist attacks at sports stadiums.” The technology includes standards for game day and non-game day operations, threat assessments and emergency plans, and the hiring, vetting, and training of personnel used to provide the services. Although the NFL does not make its Best Practices available to the public, it has shared them with other leagues, including Major League Baseball and the National Basketball Association. But the decision is drawing criticism on a number of grounds, including the fact that DHS granted this exemption based on the league’s nine-page stadium security guidelines.

The SAFETY Act was enacted in part as a response to a flurry of litigation against companies who feared they would be sued if security equipment and measures failed to prevent terrorist acts after the events of September 11th. The NFL and its teams are no strangers to security-related lawsuits. Although some teams began to conduct “pat-down” searches in the wake of 9/11, the NFL lacked a comprehensive set of security practices until August of 2005, when it issued a directive requiring teams to conduct mandatory searches of fans before they enter stadiums.

The American Civil Liberties Union (ACLU) fired back with a series of lawsuits filed on behalf of citizens challenging the NFL’s policies. In October of 2005, the ACLU sued on behalf of Gordon Johnston, a Tampa Bay Buccaneers season ticket holder, challenging the team’s pat-downs. A Florida court ruled that the pat-downs at Buccaneers home games violated federal and Florida state protections against unreasonable searches. Just a few months later the ACLU of Northern California sued the San Francisco 49ers on behalf of season ticket holders, Dan and Kathleen Sheehan, alleging that the team’s “pat-down” policy violated the couple’s right to privacy under the state constitution. On March 3 the California Supreme Court ruled that further inquiry was necessary to determine whether the searches were reasonable and remanded the case to the lower court for further review and fact finding.

Although the SAFETY Act only provides liability exemption from claims stemming from terrorist attacks, it is not clear how the NFL’s immunity under the SAFETY Act will influence this reasonableness analysis in civil liberties litigation. If these security measures have earned the Department of Homeland Security’s approval, is it fair to assume that they are reasonable? Will the NFL’s recently granted exemption have any effect at all on pending litigation against the league? The effects remain to be seen.

The NFL’s DHS Designation and Certification is set to expire on January 31, 2014.

Elizabeth Renieris

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