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Editor: Katharine Van Tassel
Akron Univ. School of Law

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Tuesday, November 6, 2012

Iron Dust and Dual-Use Research of Concern - "Rogue" Experiments and the Law

Several weeks ago, the New York Times reported that a California businessman loaded a fishing boat with 100 tons of iron dust and dumped it into the Pacific Ocean off of western Canada, in a rogue ecological experiment purportedly designed to stimulate the recovery of a local salmon fishery for the native Haida people.  The experiment was privately funded by a native Canadian group, and sparked outrage in the scientific community because of the possible ill effects this dumping could have on the environment and the lack of government or international scientific oversight for the experiment.

Although this experiment has no direct relationship to health-care law, the problem of privately funded experiments that could have endanger as well as benefit the public health (known as "dual-use research of concern") exists in spades in the health-care world.  Last winter, there was controversy about two experiments that were done on bird flu virus, which ultimately transformed the virus into one that was more easily transmissible between mammals through the air than the "wild" bird flu virus.  When the two teams of scientists that performed these experiments sought to publish their studies in scientific journals, controversy ensued when the Natioanl Science Advisory Board for Biosecurity (NSABB) initially recommended that the research be redacted before publication, to ensure that a bioterrorist or unscrupulous hostile government could not duplicate the experiments and produce a potent and deadly biological weapon.  The brouhaha died away after the NSABB reversed itself, and the studies were published in full, so far without incident.

But what if the research was truly a road map for a bioterrorist, and had not been publicly funded?  What if somebody like the native Canadian group in the iron dust experiment decided to privately fund a "rogue" scientist to produce a dangerous pathogen, who then sought to publish the research?  Would the government or the international scientific community have any ability to stop the publication?   The closest we have come to this problem was in the case of United States v. The Progressive, Inc., where an amateur physicist cobbled together a "how to" manual on building a hydrogen bomb from publicly available sources.  He gave the article to The Progressive magazine, whose editor decided that dealing with the government prior to publication would be better than dealing with the consequences afterwards, and notified the Department of Energy of the article prior to publication.  What ensued was a courtroom drama, with the government seeking a prior restraint against the magazine, and the magazine receiving a megaton (pun intended) of publicity and a likely trip to the United States Supreme Court.  However, it all became moot when another author disclosed similar data in a letter published in numerous newspapers, and the legal issue was never resolved.  

My current research focuses on the problem of dual-use research of concern in the public health arena,  the dangers of privatizing such research, and the inadequacy of our current legal tools to deal with such a situation.  The iron dust ecological experiment may be an unfortunate harbinger of things to come in the public health arena, should we continue down the path of cutting government spending on research and farming out important scientific work to private and commercial interests. 

[VJW]

Cross-Posted on Healthy Interests

http://lawprofessors.typepad.com/healthlawprof_blog/2012/11/iron-dust-and-dual-use-research-of-concern-rogue-experiments-and-the-law.html

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