<dave@farber.net> Subject: Will Bioterror Fears Spawn Science Censorship? 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. - - - Jennifer Granick is executive director of the Stanford Law School Center for Internet and Society and teaches the Cyberlaw Clinic. ------------------------------------------- Archives: http://v2.listbox.com/member/archive/247/=now RSS Feed: http://v2.listbox.com/member/archive/rss/247/ Powered by Listbox: http://www.listbox.com ----- End forwarded message ----- -- Eugen* Leitl <a href="http://leitl.org">leitl</a> http://leitl.org ______________________________________________________________ ICBM: 48.07100, 11.36820 http://www.ativel.com http://postbiota.org 8B29F6BE: 099D 78BA 2FD3 B014 B08A 7779 75B0 2443 8B29 F6BE