Art or Bioterrorism?
Implications of the Kurtz Case for Research Science and for Limiting Terrorist Threats
Margaret E. Kosal
One spring morning in 2004, Professor Steven Kurtz of the State University of New York (SUNY), Buffalo campus, woke to the horrid discovery that his wife of twenty years had died overnight from a heart attack. He called 9-1-1 for emergency services. Paramedics arriving at the Kurtz home noticed technical equipment that would normally only be found in a clinical or research laboratory. If the emergency responders had not been suspicious and had not acted on those suspicions, it would have been worrisome. What happened later – the investigation of Kurtz and colleagues by the U.S. Department of Justice and the Federal Bureau of Investigation’s (FBI’s) Joint Task Force on Terrorism under bioterrorism statues – might have more worrisome implications for both academic research and limiting the threat of bioterrorism.
The Art
Kurtz is a founding member of the Critical Arts Ensemble (CAE). A multi-media, artist collective, CAE explores the political and social implications of science, particularly biotechnology, on people and for people who aren’t scientists.
Many CAE productions are theatrical in nature. One project was intended to evoke dialogue regarding the historical and modern roles of the United States in biological warfare. As part of a mock ‘anthrax’ attack, the CAE used biological warfare simulants – some of the same microbes that the U.S. military used for testing the dispersal and spread of biological warfare agents. Some of these simulations were done over civilian areas.[1] Among the materials seized from Kurtz’s home were unspecified books on biological warfare, books that had been incorporated in the CAE’s The Marching Plague project.
Kurtz and the CAE also critiqued the blending of biotechnology with agriculture. Much of the laboratory equipment found in the Kurtz home, including a commercial polymerase chain reaction instrument for DNA extraction and amplification, was part of a project on genetically engineered food. Audience members would be invited to bring food samples from their homes or seeds in order to test for the presence of non-native genes – transgenic ‘contamination.’ Such displays had been exhibited in public since 2002.
Neither Kurtz nor the CAE is the first to incorporate biotechnology or even genetic engineering into art.[2] Chicago-based artist Eduardo Kac triggered a commotion in 2000 when he announced the creation of Alba – a green fluorescent bunny.[3] Kac’s transgenic artwork involved the insertion of a gene isolated from jellyfish, for the green fluorescent protein, into the rabbit’s DNA. Before Kurtz and Kac’s work, the Massachusetts Institute of Technology’s Joe Davis pursued the interplay between genetic engineering and art. However, his work, such as E. coli engineered with an iconic image encoded into the bacteria’s DNA, is considerably less tactile.[4] Other artists to explore biotechnology include Lauri Cinto, who has made an unsubstantiated claim of creating a cactus that grows human hair, and Marta de Meneze, artist-in-residence at Imperial College in London, who uses modern biology techniques to manipulate developing butterflies that display unnatural ‘artistic’ wing patterns.[5]
The Agents
The bacteria found in Kurtz’s home, Bacillus atrophaeus, Serratia marcescens and a non-pathogenic variant of endogenous E. coli, do not appear on any list of controlled microorganisms, e.g., the U.S. select agent list.[6]6 All of the microbes are considered suitable for manipulation under the lowest level Biosafety standards (Biosafety Level 1, or BSL-1). These microbes are the types found in biology laboratories used by high school and first year university students, even some middle school laboratories. The New York State Health Department acknowledged that the bacteria found at the Kurtz home “posed no health risk in or around the house.”[7]
One of the agents, S. marcescens, is a classic biological warfare simulant. Used as model organisms in place of more lethal biological agents, simulants are non-pathogenic microbes or biological substitutes. Between September 1950 and February 1951, aerosolized S. marcescens (“SM” in U.S. military code) was intentionally released from offshore U.S. Navy vessels in the San Francisco Bay and spread over the inland San Francisco area to test the effectiveness of novel dispersal methods.[8] The U.S. military successfully disseminated and tracked the simulants. The bacteria was later implicated in the death of one man and the hospitalization of ten men and woman.[9] Although the cause of this particular outbreak has never been conclusively linked to the biological warfare dispersal simulation, S. marcescens is now known to be a human pathogen responsible for a significant percentage of nosocomial (hospital-acquired) infections.[10]
Kurtz wanted to use S. marcescens for the same reason that the former U.S. offensive biological weapons program did – it has a bright red-pink color that is easy to track. Whether used in a true biological warfare dispersal simulation or in a performance art project, determination of the bacteria’s successful spread is simple and straightforward.
Kurtz received the samples from Professor Robert Ferrell, then-chair of the University of Pittsburgh’s Human Genetics Department within the Graduate School of Public Health. When Kurtz became aware that S. marcescens has been rarely associated with pneumonia and urinary tract infections, he wrote to Ferrell asking for “any other ideas on another bacteria [sic] that can travel by air and be easily identified on a pertri [sic] dish, and – most importantly , is unequivocally classified as nonpathogenic?”[11] Kurtz was clearly concerned with using bacteria that would not harm himself or anyone in a CAE project audience.
The nonpathogenic E. Coli recovered from Kurtz’s home was part of a two-year-old performance art project that toured, with advertising, across America.[12] There was no subterfuge or effort to conceal the artistic work – research in art – that was attempted by any of the CAE members.
Concern for public safety was cited as a major factor prompting the investigation.[13] This is a legitimate reaction. Supporters of Kurtz recognize and accept this public health need. Even the CAE Legal Defense Fund spokesman, Greg Bardowitz, has acknowledged that the initial circumstances “were enough to warrant a full investigation.”[14] Claire Pentecost of the School of the Art Institute of Chicago and past collaborator on CAE projects agreed. “I think it was reasonable for them to look into it when they first saw the equipment in someone’s house.”[15]
The Case Against Kurtz
The original search warrant and subpoenas issued to Kurtz and eight art colleagues by the FBI’s Joint Terrorism Task Force referred to the portion of the U.S. Biological Weapons Anti-Terrorism Act of 1989 dealing with prohibitions on possessing “any biological agent, toxin, or delivery system of a type or in a quantity that, under circumstances, is not reasonably justified by a prophylactic, protective, bona fide research, or other peaceful purpose.” It is that last part – for other peaceful purpose – that CAE supporters from art and science see covering Kurtz’s activities. Richard Mears, a University of Maine professor of criminal justice commented, “the real issue is what was his intent.”[16]
Eventually, Kurtz was not charged under bioterrorism laws but was indicted on two counts of mail fraud and two counts of wire fraud for each of two bacterial cultures found in his home, S. marcescens and B. atrophaeus, which had been obtained from the American Type Culture Collection (ATCC).[17] His wife’s death was determined to be from natural causes, nothing related to the bacteria found in their home. Indicted along with Kurtz was Professor Robert Ferrell, who gave Kurtz the bacterial samples. Recipients of ATCC products are prohibited, by contract, from redistributing any microbiological samples purchased.
According to the indictment (available on the internet at CAE Defense Fund website, <http://www.caedefensefund.org/>), Kurtz is charged with not being a properly registered customer with the ATCC – which he wasn’t. He did reportedly submit an application to become a registered customer, but it was denied due to his improvised facilities and lack of established biosafety protocols. Ferrell is charged with ordering with intent to transfer material to Kurtz and with transferring ATCCsupplied material in violation of the letter of the contract he signed – which he did.
At this writing, the case has not gone to trial. For the time, Kurtz has returned to teaching art at the upstate New York college. Due to his ill health – complications of non-Hodgkins lymphoma – Ferrell still has not traveled to Buffalo for his arraignment on the mail and wire fraud charges.
Implications for Research Scientists
Questions about the after-effects of the investigation and indictment surfaced quickly. The main issue is whether this case will discourage those contemplating work that might bring similar scrutiny. The question of a ‘chilling effect’ is probably less critical for iconoclastic artists than experimental scientists seeking tenure track positions or National Institutes of Health grant renewals. In direct response to the Kurtz case and after questioning by the FBI, Professor Adele Henderson, chair of the SUNY-Buffalo art department, commented “this is a free speech issue, and some people at the university remember a time during the McCarthy period when some university professors were harassed quite badly.”[18] This cooling enthusiasm, however, can be read in the skeptical words of Steven Teitelbaum, President of the Federation of American Societies for Experimental Biology: “Bureaucracies want to justify their existence. They tend to be overzealous.”[19] Teitelbaum speculated that scientists would not pursue research that attracts “such negative scrutiny.”
The Kurtz investigation follows two other academic cases with bioterrorism overtones. Tomas Foral, a University of Connecticut graduate student studying molecular biology and U.S. National Guard volunteer, was charged under the Patriot Act with possession of anthrax-containing tissue in 2002.[20] The samples in question, reportedly dating to the 1960’s, were stored in a locked freezer within his research group’s laboratory space. Rather than going to trial and risking a ten-year prison sentence, Foral agreed to participate in a community service program.
Professor Thomas Butler, affiliated with Texas Tech University Health Sciences Center, has experienced much harsher consequences.[21] Butler illegally imported cultures containing Yersinia pestis (the causative agent of the plague and high on the select agent list), from Tanzania into the U.S. In an effort to hide the samples, he reported them stolen in January 2003. Like Kurtz and Ferrell, Butler was eventually charged with mail and wire fraud along with more serious accusations relating to illegal payments from major pharmaceutical firms; he was convicted in March 2004.[22]
These cases further illustrate the tough stance that the U.S. Justice Department is taking toward allegations that even hint at bioterrorism or the involvement of select agents. These two legal actions involved practicing academic researchers – one just starting a technical career and the other a highly respected expert on Y. pestis.
The Kurtz case drew in a bioscientist, University of Pittsburgh’s Ferrell. Before moving to SUNY-Buffalo, Kurtz had taught at Carnegie Mellon University, also located in Pittsburgh.[23] The two academics became acquainted when working in western Pennsylvania. Allegedly, Ferrell obtained microbes from the ATCC then transferred them to Kurtz, apparently as a collegial gift.
Rarely have academics charged a fee for the exchange of samples. Scientists regularly share small samples domestically and internationally. Many such collaborations have existed for a decade or more. Grant proposals or co-authorships in technical papers may formalize some of these, but more often acknowledging footnotes to a manuscript log the exchanges. Typically it is considered part of the academic culture or, more realistically, done with the expectation that in the future there will be a return of assistance in some manner. It would be an obscene waste of resources to imagine FBI agents skimming the pages of Cell or the Journal of Biological Chemistry seeking researchers who received or gifted samples to colleagues.
On the bench-side, researchers with historical access to agents for legitimate purposes cannot return to the old way of thinking or behaving. The research culture in the U.S. is struggling to catch-up to the legal culture. Attitudes toward and boundaries on biotechnical research have changed. Scientists need to understand and internalize the reality that there are no longer pro forma-style regulations that can just be checked off or initialed without considerable fore- and after-thought. This applies to both the choice of research – what agents might be involved and repercussions for terrorist use – and how research and sharing of samples will be done. Casual exchange of materials for legitimate research endeavors among colleagues knowing each other for years or decades – from cell lines to mutants (transgenic organisms) to DNA sequences – cannot be done without considering implications regarding bioterrorism and the associated U.S. statutes. The scientific culture in the U.S. has to adapt to contend with the Justice Department’s shift in focus.
Reactive prosecution is one route to accomplish this culture change. Another path is via pro-active education of the scientific community on the risks and new responsibilities of biotechnology research in an age of terrorism.[24] The Federation of American Scientists (FAS) recently launched a pilot program, Biosecurity for Biologists, to promote awareness of security issues among undergraduate- and graduate-level biologists at Research I institutions. This project represents an excellent start to address the need to instill a culture of responsibility regarding biosecurity into research science.
In an era of increasing interdisciplinary research – when former “chemical engineering” departments are renamed “chemical and biomolecular engineering,” and when electrical engineers are designing complexes that bind carbon nanotubes to DNA – attempts to narrowly demarcate research into traditional departmental divisions are fast emerging as evidence of parochial myopia. Biosecurity training efforts need to consider the multidisciplinary nature of modern biotechnology research, particularly regarding novel dispersal and delivery methods. Pragmatically, initial efforts should target research scientists manipulating live microorganisms, but an overall agenda to educate research scientists on the potential bioterrorist risks of their work must not be constrained by restricted academic boundaries that began to erode in the 1960’s with the age of molecular biology.
While members of the physics community have the American Physics Society’ Forum on Physics and the medical community has Physicians for the Prevention of Nuclear War, historically groups of biologists, chemists, and researchers in allied fields have not formed organized professional groups to seriously consider the potential links between their experimental research and non-proliferation issues.
Academics need to participate in meaningful dialogue to implement policies and protocols from within their ranks. If scientists ignore the ways research culture might need to be systematically altered or react purely defensively to an enjoinder to their scientific or proprietary territory, a regulatory policy will be developed and implemented from outside the scientific and technical community. Alternatively, federal investigations of U.S. scientists might proliferate.
More bridges need to be built and fortified between technically trained individuals, especially those with recent experience in the modern research setting, and those instrumental in policy development and implementation, on the national and international stage. Donald A. Henderson, Senior advisor at the Center for Biosecurity of the University of Pittsburgh Medical Center and former director of the World Health Organization’s global smallpox eradication program commented, “I am absolutely astonished… [B]ased on what I have read and understand, Professor Kurtz has been working with totally innocuous organisms. I am dismayed by what appears to me to be yet one more instance in which knowledgeable persons in the field of bioterrorism are not being brought in and consulted to ascertain what might be real problems and what are purely spurious problems.” The role of scientists is vital, both to protect the freedom of the academic research environment – whether it be performance art or proteomics – and to minimize the threat of terrorists misusing biotechnology for malicious intents.
It is notable that all three of these cases – Kurtz/Ferrell, Butler, and Foral – have focused on individuals engaged in academics, from art to molecular biology. We have not seen any publicized investigations of behavior in violation of bioterrorism prevention statutes directed at private corporations.
There is another ‘chilling effect’ to be considered in the fallout from the Kurtz case. The seriousness devoted to bioterrorism investigations risks being diluted to the level of copy-cat white powder ‘anthrax’ scares. While law enforcement must react to every case, the greater public’s response is quickly numbed. As an LA Times editorialist wrote, “the effort to paint Kurtz as a bioterrorist in the making would be funny if it wasn’t so frightening.”[26] It is legitimate to wonder how this case contributes to securing America from a bioterrorist attack. In the end, the U.S. Justice Department charged Kurtz and Ferrell with mail fraud. The individual or individuals responsible for the fall 2001 anthrax deaths have not been identified or caught to be charged with anything. Preventing another bioterrorist attack is a very serious matter. By comparison, mail fraud is not.
Implications for Intelligence and Limiting Bioterrorist Threats
A failure of imagination was one main critical findings of the final report issued by the National Commission on Terrorist Attacks Upon the United States (also known as the 9-11 Commission).[27] By definition, artists are creative and imaginative people. In doing their work, they share, with scientists, the need to imagine beyond what is known; artists and scientists use different methodologies. That imaginative ability can aid efforts at terrorist threat anticipation and threat reduction.
Specifically, the Kurtz case may be invaluable for assessing the capability of non-technically trained individuals to generate an air-dispersed microbiological. How good or successful were the CAE artists in making their anthrax simulants? Much of the argument surrounding the fall 2001 mailings of anthrax-spore containing envelopes has revolved around the question of expertise required to produce the weaponized agents that resulted in five deaths.[28] How successful was the CAE at creating a freeflowing, micron-sized powder? What did they try? And what resources did they find that led them to pursue those choices? These are all legitimate questions that can provide information for construction of empirical models of behavior as part of threat anticipation and reduction. From a technical security studies perspective, there is an edifying aspect regarding how successful a group of non-technically-inclined individuals can be without any malicious intent.
In the late 1990s, the Defense Threat Reduction Agency (DTRA) sponsored a project that attempted to assemble a make-shift laboratory to produce weaponized Bacillus anthracis (the causative agent of anthrax) in Nevada.[29] It was called Project Bacchus. How does CAE compare to Project Bacchus? The comparison should provide useful information in distinguishing a makeshift biological warfare production facility from improvised biotechnology for peaceful purposes. What critical differences distinguish the two experimental setups? Someone can only evaluate these questions with access to both the DTRA exercise and the FBI investigation. This is a further example of the need for interaction across traditional boundaries in the fight against bioterrorism, against cooption of legitimate research for malicious purposes, and in protection of the civil liberties.
A June editorial in the pre-eminent British science journal Nature encouraged scientists to support Kurtz, noting that “art and science are forms of human enquiry that can be illuminating and controversial, and the freedoms of both must be preserved as part of a healthy democracy – as must a sense of proportion.”[30] In the war against terrorism, neither art, science, nor democracy should be an unintended casualty.
An earlier version of this article appeared as a Center for Nonproliferation Studies (CNS) Research Story; http://cns.miis.edu/pubs/week/040727.htm
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Center for International Security and CooperationCISAC is a multidisciplinary community dedicated to research and training in issues of international security. The Center brings together scholars, policymakers, area specialists, business people, and other experts to focus on a wide range of security questions of current importance. CISAC grew from Stanford University's pioneering commitment to explore concerns about the escalating arms competition that marked the decades following World War Two. With the founding of the Arms Control and Disarmament Program in 1970, Stanford University became one of the first academic institutions in the nation to commit faculty and resources to the study of the critical issues surrounding the Cold War and the ability of great powers for the first time in history to destroy each other's societies. |
