Biotechnology Research in an Age of Terrorism (2004) / Chapter Skim
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3. Information Restriction and Control Regimes
3. Information Restriction and Control Regimes
Pages 79-106
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From page 79... ...
With respect to the life sciences, the most important initiatives to date are those embodied in the PATRIOT Act and the Bioterrorism Response Act. As discussed in Chapter 2, the latter legislation provides for the regulation of access to select agents and toxins through registration and screening of all institutions and individuals that possess, use, or transfer select agents.
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From page 80... ...
PAST AS PROLOGUE? The life sciences differ from the physical sciences in that they have not been deeply involved in developing new weapons in the United States since the Biological and Toxin Weapons Convention banned biological weapons in the early 1970s.3 While many countries pursued BW work prior to the BWC entering into force, only a few had large-scale programs, and even in those countries military support for biological research was dwarfed by the resources going into nuclear and conventional weapons programs.4 The main patrons of research in the life sciences in the United States have been the National Institutes of Health (NIH)
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From page 81... ...
Under the Atomic Energy Act of 1954, all information concerning nuclear weapons is "born classified," so that even research done outside the national laboratories under private sponsorship may be automatically classified if it is deemed relevant to nuclear weapons.7 The category of "unclassified controlled nuclear information" (UCNI) is exempt from release under the Freedom of Information Act.8 Exports of nuclear materials and related technologies are controlled under provisions of the Atomic Energy Act, the Nuclear Nonproliferation Act of 1978, and the Nuclear Nonproliferation Treaty, with nuclear dual use items covered by the Export Administration Act.
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From page 82... ...
No "bright line" exists between purely defensive and purely offensive uses of infrastructure and knowledge. Box 3-1 offers additional comparisons of the distinct differences between fissile materials and biological pathogens that fundamentally affect the security concerns related to research relevant to nuclear and biological weapons.
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From page 83... ...
The encryption escrow feature was retained in the new standard, but use of the standard is voluntary.~2 More significant for the debate over secrecy was the government's attempt in the late 1980s to put some academic research papers dealing with cryptography under export control laws and to require that research publications be vetted by the National Security Agency (NSA)
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From page 84... ...
Traditionally, biology has been considered a small-scale science. Although work in genomics, proteomics, and bionanotechnology is overturning this paradigm, the research and development associated with biological weapons programs do not necessarily require large-scale investment or specialized, dedicated facilities.
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From page 85... ...
The tradition of classified government research is well established in the latter two fields; the counterpart in the life sciences was the DOD program for research on biological weapons centered at Fort Detrick, MD, which ended in 1970. As noted above, however, that bioweapons program was only a small part of the government's funding of basic research in the life sciences and its very secrecy tended to isolate it from the larger community of life scientists.
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From page 86... ...
SECRET AND SENSITIVE INFORMATION An excellent summary of the different types of information control regimes in the United States is published by the Association of American Universities and is reproduced in Box 3-2. 20 Secret Information The U.S.
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From page 91... ...
The first exception, described above, is the Atomic Energy Act, where infor
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From page 92... ...
Under the Invention Secrecy Act of 1951, the government is required to impose "secrecy orders" on certain patent applications that contain sensitive information.22 The disclosure of the invention is restricted and the grant of a patent is withheld. As summarized by the Project on Government Secrecy of the Federation of American Scientists, "this requirement can be imposed even when the application is generated and entirely owned by a private individual or company.
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From page 93... ...
Far more problematic is the interest in designating certain areas of research and certain types of knowledge in the life sciences wherever they are produced and however they are funded as "sensitive but unclassified." Sensitive Information The issue of "sensitive information" is not new. Classification is only one of the ways in which the U.S.
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From page 94... ...
In addition, it is easy to imagine that information such as the location of biological research programs might be considered sensitive, if the theft of select agents is considered a threat.32 The Bioterrorism Response Act exempts information on possession of select agents from FOIA. The Bush Administration has urged federal agencies to use all applicable exemptions to the Freedom of Information Act when considering requests for "sensitive but unclassified information." The White House assigned the Office of Management and Budget the task of developing uniform policy guidance for government agencies on defining and controlling sensitive information.33 Section 892 of the Homeland Security Act directs the President to "identify and safeguard homeland security information that is sensitive but unclassified."34 No definition of "sensitive" is provided in the statute, however, and the fact that different agencies have put forward different definitions is a further concern.35 A key question is whether restraints on sensitive information might be extended beyond the information held internally by federal agencies, and, if so, who would be responsible for determining what counts as "sensitive." The DOE provides an illustrative example of the difficulties associated with attempts to define "sensitive" information.
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From page 95... ...
Recently, however, DOE has sought to clarify its policies, in part to address concerns about whether real or anticipated restrictions were hampering the vitality of the national laboratories. The Department is attempting to implement a policy in which "Official Use Only" information, based on the Freedom of Information Act, will be the standard for deciding whether and how to control unclassified information, gradually replacing the various other information categories that have emerged over the years.39 In addition, a department-wide memo on May 12, 2003 reaffirmed that the provisions of NSDD-189 remain the basis for DOE policy regarding restrictions on fundamental research.40 These DOE policies would presumably need to be reconciled with the regulations that will be required to define and implement Section 892 of the Homeland Security Act, which created the new category of "sensitive homeland security information."
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From page 96... ...
Technology is considered "specific information necessary for the 'development,' 'production,' or 'use' of a product," and providing such information to a foreign national within the United States may be considered a "deemed export" whose transfer requires an export license.4~ Technology "which arises during or as a result of fundamental research" is not subject to export restrictions which relieves many scientists but not those engaged in proprietary research sponsored by commercial interests at public and private universities.42 PUBLICATION OF SENSITIVE INFORMATION IN THE LIFE SCIENCES Until recently, there were very few cases of problems related to the publication of research results in the life sciences that attracted significant public attention. Some specialists in bioterrorism, however, had warned that, given continuing advances in biotechnology, open publication could provide information of use to terrorists.43 The publication of the "mousepox" study, as well as other studies discussed in Chapter 1, made the issue a major concern for journal editors.44 The public perception of potential risks associated with publication of such information led to calls for scientific journals to refrain from publishing "dangerous" research or to delete some data from published research results in order to preclude others from replicating the results.45 Journals in the life sciences have responded in a number of ways to the concerns that published articles might provide useful knowledge or a road map for terrorists or rogue states.
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From page 97... ...
But ASM has also instituted formal procedures as part of the peer-review process for submitted articles so that reviewers address the potential risks of the research results to national security. At present, these policies apply primarily although not exclusively to research conducted on select agents.47 In 2002, of the 13,929 manuscripts submitted to ASM journals, 313 select agent manuscripts received special screening, and of these two manuscripts received additional screening by the full ASM publication board.
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From page 99... ...
INFORMATION RESTRICTION AND CONTROL REGIMES 99 CONCLUSIONS Any argument about imposing information controls whether through formal classification or restrictions on "sensitive" informationmust be made in the context of the specific institutional history and research culture of the life sciences research community. Like all sciences, the life sciences rely upon a culture of openness in research, where the free exchange of ideas allows researchers to build on the results of others, while simultaneously opening scientific results to critical scrutiny so that mistakes can be recognized and corrected sooner rather than later.
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From page 100... ...
The costs of complying with information controls on life sciences research would range from their impact on the culture of the research laboratories, which is generally acknowledged to be extraordinarily open, to financial costs borne by institutions in complying with government regulations, to the creation of obstacles to monitoring compliance with international arms control measures directed at biological weapons. The restrictions already in effect on select agents have caused some laboratories to destroy archived samples and to limit exchanges of materials between scientists.
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From page 101... ...
4 For a description of national chemical and biological weapons programs prior to 1970, see SIPRI.
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From page 102... ...
For scientists in those areas, work in the national laboratories has caused significant tensions between security measures and maintaining contact with the unclassified research community from which advances relevant to their work will come. These issues are discussed in Center for Strategic and International Studies.
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From page 103... ...
Representative items on the list that would apply to the control of biological select agents include costs for screening personnel; for secure filing cabinets; for guards; and for routine inventories of controlled material. Schwartz, S.I.
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From page 104... ...
0pen Document. 32 The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 calls for a national registry of facilities holding select agents, and requires that information about the sites be kept secret.
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From page 105... ...
2002. "Limiting the contribution of the open scientific literature to the biological weapons threat." Online journal of Homeland Security, December.
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From page 106... ...
47 The ASM policy is not restricted to select agents exclusively. At the present time, all manuscripts addressing research conducted on select agents are flagged but others may be as well.
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