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IIIIIIEIITIIY
BioCrimes and Misdemeanors
Commentary by Edward McSweegan
August 17, 2004

As a graduate student twenty years ago, I had a departmental recruiting poster tacked up on
the wall next to my desk. It read, in part, "If you are curious, patient, and awfully damned
intelligent, consider a Ph.D. in microbiology." In 1984 a degree in microbiology seemed like a
good idea.
AIDS was just exploding on the scene. Lyme disease was racing through the Northeast.
Evidence was emerging that a bizarre neurologic disease might be caused by an equally
bizarre infectious agent called a prion. And recombinant DNAtechniques, discovered a decade
earlier, were rapidly helping to create a multi-billion dollar industry in the U.S.

But now in 2004, a degree in microbiology, or even a vague interest in infectious diseases,
might not be such a good idea. In fact, it might get you arrested by the FBI.
After 9/11 and the October anthrax mailings, a series of laws and regulations were hastily
enacted to discourage future acts of bioterrorism and misguided hoaxes. The anthrax mailer
has not been caught and no other bioterrorists appear to be lurking on the horizon.

Deprived of new suspects, terrorists, plagues or other insidious acts of microbiology, the FBI
has turned its attention to softer targets.
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In the last two years they have used provisions of the 2001 Patriot Act and the 2002 Public
Health Security and Bioterrorism Preparedness and Response Act to arrest and prosecute
university professors, graduate students, and at least one New York artist. None of these U.S.
citizens are terrorists, but they have all been run to ground by the FBI's need to be seen doing
something...even if it's the wrong thing.

Two years ago, a University of Connecticut graduate student (Tomas Foral) became the first
person to be arrested under the Patriot Act. His crime: moving a 35-year-old sample collected
from an anthrax-infected cow from one freezer to another freezer. This spring,
world-renowned plague expert and physician Thomas Butler was sentenced to two years in
prison. His crime: mislabeling a FedEx package containing plague samples, and getting into
billing disputes with Texas Tech University accountants over his research funds.
In July, a federal grand jury indicted a University of Pittsburgh genetics professor, and an
artist at the State University of New York at Buffalo. As with Butler and Foral before them,
neither man is charged with any actual acts of bioterrorism. Rather they are charged with
mail and wire fraud. The artist, Steve Kurtz, got two samples of harmless bacteria from
Pittsburg Professor Robert Ferrell who apparently failed to fill out the appropriate paperwork.
Both men are facing the possibility of 20 years in prison.

The Patriot Act prohibits the possession of "any biological agent, toxin, or delivery system of a
type or in a quantity that, under the circumstances, is not reasonably justified by a
prophylactic, protective, bona fide research, or other peaceful purpose."
Phrase such as "biological agent," "reasonably justified," and "peaceful purposes" are open to
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 interpretation; if one is inclined to be reasonable, especially about criminal Intent.
Unfortunately, the FBI and the Justice Department have shown no interest in being reasonable
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or responsible defenders of the public's safety.

Last fall, D.A. Henderson, the Johns Hopkins University professor who eradicated smallpox in
the 1970's and advises the federal government on bioterrorism, declared the FBI has "lost all
perspective" and "is out of contro!." In June, Dr. Barbara Rosenberg, Chair of the Arms Control
Center's Scientists Working Group on Biological and Chemical Weapons, said, "Clearly the
Justice Department hasn't the foggiest idea of what is significant."

Instead of focusing on real terrorists and lone lunatics, they are using the Patriot Act as a
crowbar to pry open the innocuous trivia of ordinary people's lives, and leveraging Mickey
Mouse complaints, sloppy paperwork and professional disputes to the status of federal crimes
worthy of indictment, prosecution and imprisonment.
The result is widespread fear among scientists. Some researchers have stopped working on
certain dangerous pathogens and some universities have destroyed valuable collections rather
than risk a paperwork mishap that might attract the FBI. Cornell professor and Nobel Laureate
Robert Richardson noted that before the Patriot Act thirty-eight of his colleagues were working
on "select agents." Now there are two. Anthrax expert Paul Keim told the Los Angeles Times
last October, "Allof us are worried we are going to fall into some trap that we don't know
about. "

One of the biggest traps may be the new Material Transfer Agreement (MTA)people now must
sign in order to get specimens from the American Type Culture Collection (ATCC),a national
archive of biological materials. The Agreement states, "The Purchaser shall not distribute, sell,
lend or otherwise transfer the Material...for any reason."
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That may sound reasonable, but how do teachers and professors hand out classroom samples
and do student experiments without violating the ATCCdecree not to distribute, lend or
otherwise transfer? To follow the letter of the law, every Biology 101 class could generate
hundreds of MTAs. How do researchers and graduate students collaborate if every test tube
and Petri dish must generate a paper trail from person to person, sample to sample, and
experiment to experiment? As University of California at San Diego Professor Natalie
Jeremijenko observed, "They're going to have to indict the entire scientific community."
Medical research and science education are becoming the new causalities in the war on terror.

As the arrest of Steve Kurtz suggests, the greatest threat may be to amateur scientists. The
Society for Amateur Scientists (SAS) defines an amateur as "anyone who wants to do science
simply for the pleasure of finding things out." Unfortunately, that also may be the FBI's
definition of a terrorist.

Shawn Carlson, Executive Director of the SAS and a regular contributor to Scientific American's
monthly amateur scientist column, denounced the "demonization of citizen scientists" in a
2002 press release. He noted, "My fellow citizen scientists are very worried right now."
The federal assault on science and scientists is an important issue that has not been well
covered outside professional journals and science magazines. It should be. When federal
agents, backed by federal laws, come to view classrooms as terrorist training camps, backyard
hobbyists as dangerous lunatics, and professors as domestic terrorists, then we are all in
danger.
Professional and amateur scientists, and the science teachers who first inspired them, share a
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 common threat and should form a common front against the indiscriminate use of laws meant
to protect us from foreign terrors. Benjamin Franklin-patriot, rebel and amateur
'---/ scientist-once noted, "We must all hang together, or assuredly we shall all hang separately."
So far, the FBI has been hanging us separately.

Edward McSweegan is a working microbiologist and writes the "Pathogens & People" column for
The Capital newspaper in Maryland.

@ Copyright 2004 The Washington Dispatch

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