Being a microbiologist can be a dangerous business. Some of us work out in the field, exposed to weather, animals, and pathogens of all different forms. Some do research in countries with unstable governments, collecting samples and tracking down infected individuals in the midst of strife, poverty, and warfare. Some remain in the lab, but share it with agents that can be handled only under high levels of containment, and may need special labs and permits just to do their research. We all realize our job contains some level of risk, and do what we can to minimize that.
However, as much as we try to protect ourselves against biological dangers, we can’t wall ourselves off from every form of risk, especially if it comes at us from unexpected places–like those who are supposed to keep the public safe. Since 9/11, the government has invested a huge amount of resources into research on pathogens that have the potential to be biological weapons (at the expense of basic research into other, more “mundane” pathogens), and scrutiny of all things microbiological has increased dramatically. This has caused scientists to get caught in the crosshairs, such as Thomas Butler, a microbiologist at Texas Tech who worked on Yersinia pestis (the bacterium that causes bubonic plague) among other organisms.
After initially being investigated for charges including bioterrorism (later dropped) following his report of missing bacterial vials, he was sentenced to 2 years in prison for a collection of other charges unrelated the original incident, producing a chilling effect upon the microbiology community: no one is safe from prosecution, and even a simple mistake can land you behind bars, stripped of your job and defending yourself with your retirement savings.
This isn’t the only case like this, either. Just last week, a University of Pittsburgh geneticist, Robert Ferrell, plead guilty to charges of failing to follow proper procedures in mailing samples, after being investigated initially for charges related to bioterrorism that were dropped (similar to the Butler case), and another professor awaits trial; more after the jump.
Dr. Ferrell’s story begins in 2004. Ferrell ordered two isolates of bacteria from the American Type Culture Collection (ATCC), a central repository for all types of biological samples. The species that Ferrell ordered were Bacillus subtilis, a soil bacterium sometimes used to model its pathogenic cousin, Bacillus anthracis, and Serratia marcescens, a ubiquitous bacterium that occasionally causes opportunistic infections. These species of bacteria are commonly used in high school and college microbiology labs because of their low pathogenicity. (Serratia is particularly nice because it produces a red pigment as it grows). Ferrell then mailed these to another professor and artist, Dr. Steven Kurtz of SUNY-Buffalo and founder of the Critical Art Ensemble (CAE).
Kurtz then used these bacteria as part of an art exhibit raising awareness about genetically modified food, and all hell broke loose:
In May 2004 the Kurtzes were preparing to present Free Range Grain, a project examining GM agriculture…when Hope Kurtz died of heart failure. Police who responded to Kurtz’s 911 call deemed the couple’s art suspicious, and called the FBI. The art materials consisted of several petri dishes containing three harmless bacteria cultures [the two mentioned above plus E. coli–TS], and a mobile lab to test food labeled “organic” for the presence of genetically modified ingredients. As Kurtz explained, these materials had been safely displayed in museums and galleries throughout Europe and North America with absolutely no risk to the public.
The next day, however, as Kurtz was on his way to the funeral home, he was illegally detained by agents from the FBI and Joint Terrorism Task Force, who informed him he was being investigated for “bioterrorism.” At no point during the 22 hours Kurtz was held and questioned did the agents Mirandize him or inform him he could leave. Meanwhile, agents from numerous federal law enforcement agencies – including five regional branches of the FBI, the Joint Terrorism Task Force, Homeland Security, the Department of Defense, and the Buffalo Police, Fire Department, and state Marshall’s office – descended on Kurtz’s home in Hazmat suits. Cordoning off half a block around his home, they seized his cat, car, computers, manuscripts, books, equipment, and even his wife’s body from the county coroner for further analysis. The Erie County Health Department condemned his house as a possible “health risk.”
A week later, only after the Commissioner of Public Health for New York State had tested samples from the home and announced there was no public safety threat, was Kurtz allowed to return to his home and to recover his wife’s body.
These events have been made into a recent movie; however, the story (obviously) didn’t end there. You see, Ferrell had signed a Material Transfer Agreement (MTA) with the ATCC. The one at the link was updated in September 2003, so I can’t be sure it was the version Ferrell would have used, but it states in part:
Scope of Use
YOU MAY MAKE AND USE THE MATERIAL (“MATERIAL”) PROVIDED TO YOU BY ATCC AND ALL REPLICATES AND DERIVATIVES FOR RESEARCH PURPOSES IN YOUR LABORATORY ONLY….
The Purchaser shall not distribute, sell, lend or otherwise transfer the Material or Replicates for any reason. (emphasis in original)
Ferrell violated this agreement by sharing the strains with Kurtz. Normally, this would be an issue handled between Ferrell (and his university) and ATCC; however, under the broad definitions of mail and wire fraud under the Patriot Act, the government stepped in and charged Kurtz and Ferrell with mail and wire fraud–felonies that, since they’re being charged under the Patriot Act, could carry a possible 20-year sentence.
At the time of his arrest, Ferrell was getting ready to undergo a stem cell procedure as a treatment for non-Hodgkins lymphoma that he’d been battling for many years. Since the case began 3 years ago, he’s suffered 2 minor strokes and one major stroke; his exhaustion was cited as a reason he agreed to the plea deal on lesser charges of failing to follow proper procedures in mailing samples (though I’ve not seen it explained how he mailed them; did he fail to include explanation that it was biohazardous material?). Kurtz is still fighting the charges and waiting for his day in court.
Many questions remain. Neither ATCC nor the University of Pittsburgh filed charges as the presumably defrauded parties (the bacterial samples cost $256 from ATCC)–so why is this a federal issue? Why have these cases, which started out as high-profile bioterrorism investigations that rapidly fizzled out, resulted in federal charges at all, when pre-Patriot Act they likely would have been a civil matter between the (supposedly) wronged party and the professor in question? Supporters have their own theories:
CAE supporters were relieved, but had mixed responses. “This is still a case of intimidation and harrassment,” said one. “The FBI is pissed at having gone to such lengths and having found absolutely nothing besides a $256 technicality that won’t even stick. They’re pissed about how they have been made to look like total idiots in the press for pushing ahead with this, when everyone can see there’s nothing there. And they’re probably pissed about CAE’s writings, which I remember someone speculating they paid someone to read very carefully.”
3 years of pursuing this over, as they note, a technicality. What a waste of taxpayer dollars, not to mention the damage done to the reputations and lives of the men and their families at the center of these cases.