[Infowarrior] - Will Bioterror Fears Spawn Science Censorship?

[Richard Forno]

Will Bioterror Fears Spawn Science Censorship?
04.25.07 | 2:00 AM
http://www.wired.com/print/politics/onlinerights/commentary/circuitcourt/200
7/04/circuitcourt_0425

Since September 11th, people have been increasingly worried about the misuse
of legitimate scientific research to create dangerous weapons or to bypass
security measures. Now a federal advisory board is about to recommend new
guidelines to limit publication of life-sciences research that could be
misused by terrorists. I think it's treading on dangerous ground.

Last Thursday, a draft of the rules was formally adopted by the National
Science Advisory Board for Biosecurity, or NSABB, at a meeting in Bethesda,
Maryland. The draft proposes voluntary compliance by scientists,
universities and journals, but leaves open the possibility of federal
legislation to turn the guidelines into law. Indeed, it almost invites that
result by supporting application of the NSABB recommendations to researchers
that do not receive federal funds -- a result that can only be achieved
through regulation.

As a lawyer for computer security researchers, it is impossible to regard
this prospect with anything but dread. For example, the proposal (.pdf)
broadly defines "dual use research of concern" as any "research that, based
on current understanding, can be reasonably anticipated to provide
knowledge, products, or technologies that could be directly misapplied by
others to pose a threat to public health and safety, agriculture, plants,
animals, the environment, or materiel."

That's a perfectly reasonable description of an article or paper worth a
closer look before publication. But if this language becomes a statute that
prohibits publication under some circumstances, the author risks criminal
prosecution if law enforcement disagrees with a scientist, university or
peer-review publication's decision that the research should be published.

And, legally, I'd find it extremely difficult to advise the author with any
certainty whether publishing the research is lawful or not. Whose "current
understanding" applies? What does "reasonably anticipated" mean? When is
research "directly" misapplied, or merely indirectly used? How much of a
risk "poses a threat"?

The NSABB draft also sets out a procedure to follow once a scientist has
identified research of concern. Instead of outright suppression in every
case, the proposal suggests a risk/benefit analysis, which can result in a
variety of options for communicating the research to the public.

This seems flexible and case-specific, which again, is great in a guideline,
but terrible when you are trying to advise a client how to avoid the risk of
jail. We know that reasonable scientists can and do disagree about these
things. What do prosecutors, judges and juries think?

Rejecting new regulation doesn't mean we have to be subject to the whims of
bioterrorists. Voluntary self-regulation, ethical training, peer review and
additional practices currently followed by recombinant DNA researchers,
microbiologists and other scientists all have a track record of success. And
smart federal laws can control access to pathogens -- and prohibit dangerous
practices -- while steering clear of restricting scientific publications.

Until recently, U.S. policy has been to allow the publication of
information, with only narrow controls on classified information. Then, in
2002, the president signed the National Security Act, which requires federal
agencies to create procedures to protect "sensitive but unclassified"
knowledge. The statute is unclear about whether these procedures should take
the form of voluntary guidelines, or regulations with the force of law, and
whether they'll apply outside of federal agencies. But the NSABB report
appears to be part of the effort to craft such procedures.

The scientists on the board have good reasons for wanting to be involved in
crafting the guidelines. They want to stop terrorists, and they take the
dangers from dual-use research seriously. They also want to protect the
scientific process, and they believe correctly that if regulation is going
to happen, it would be much, much better if scientists were involved.

Once such scientist is NSABB board member David A. Relman, M.D., associate
professor of medicine, microbiology and immunology at Stanford University
School of Medicine. He told me about a 2004 addition to federal law which
criminalizes possession of the smallpox virus. Unfortunately, the statute
defines the pathogen as any virus that contains 85 percent or greater
sequence similarity to smallpox, effectively outlawing a whole range of pox
viruses, including the smallpox vaccine. The maximum penalty for violating
the law is a fine of $2 million dollars and 25 years in prison.

Doctor Relman views his role on the NSABB as helping the government avoid a
similar kind of mistake in the future. He and his colleagues are doing us a
service by participating, but they have to be extremely careful that their
work is not used to legitimize regulation. Any guidelines should be crystal
clear that they are good only as that -- guidelines.

If the NSABB is not careful, its well-balanced recommendations may become a
precursor for abandoning voluntary self-regulation in favor of federal
regulation of scientists. Once we have regulations, we will also have
penalties for non-compliance. At that point, the only question left will be
how much scientific self-determination remains.

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Jennifer Granick is executive director of the Stanford Law School Center for
Internet and Society and teaches the Cyberlaw Clinic.