Margaret E. Kosal, PhD
July 27, 2004
Kurtz (right) at a 2003 exhibit in Frankfurt with equipment later confiscated by the FBI.
Source: Critical Art Ensemble
One spring morning, Professor Steven Kurtz of the State University of New York (SUNY), Buffalo campus, woke to the horrid discovery that his wife of 20 years had died overnight from a cardiac arrest. He called 9-1-1. Paramedics arriving at the Kurtz home noticed technical equipment that would normally only be found in a laboratory. If the emergency responders had not been suspicious and reacted, it would have been worrisome, particularly given the unexpected death. What happened later – the investigation of Kurtz and colleagues by the Department of Justice and the Federal Bureau of Investigation’s (FBI’s) Joint Task Force on Terrorism under bioterrorism statues – may have more worrisome implications.
The Art
Professor Kurtz is a founding member of the Critical Arts Ensemble (CAE). CAE is a multi-media, artist collective exploring the political and social implications of science, particularly biotechnology, on people and for people who aren’t scientists.
Many of the CAE productions are theatrical in nature. One current project is intended to evoke dialogue regarding the historical and modern roles of the United States in biological warfare (BW). As part of a mock “anthrax” attack, the CAE uses BW simulants – some of the same microbes that the U.S. military used for testing the dispersal and spread of BW agents. Some of these simulations were done over civilian areas.[1] Among the materials seized from Kurtz’s home were unspecified books on BW, books which had been incorporated in the CAE’s “The Marching Plague” project.
Neither Kurtz nor the CAE is the first to incorporate biotechnology or even transgenics into art.[2] Chicago-artist Eduardo Kac caused something of a stir 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 (GFP), into the rabbit’s DNA. MIT’s Joe Davis actually preceded Kurtz and Kac in pursuing the interplay between genetic engineering and art. But his work, like 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 claimed to create 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 three agents found in Kurtz’s home, Bacillus atrophaeus, Serratia marcescens and a nonpathogenic variant of endogenous E. coli, do not appear on any select agent list. 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 high school and freshman college biology laboratories, even some middle school laboratories. The New York State Health Department acknowledged that the microbes found at the Kurtz home “posed no health risk in or around the house.”[6]
One of the agents, S. marcescens, is a classic BW 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.[7] The simulant was successfully disseminated and tracked. It later was implicated in the death of one man and the hospitalization of 10 men and woman.[8] Though the cause of this particular outbreak has never been conclusively linked to the BW simulations, S. marcescens is now known to be a human pathogen responsible for a significant percentage of nosocomial (i.e., hospital-acquired) infections.[9]
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 making the determination of its successful spread simple and straightforward, whether used as a true BW dispersal simulation or part of a performance art project. Kurtz received the samples from Professor Robert Ferrell, 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?”[10] Kurtz was clearly concerned with using bacteria that would not harm himself or anyone in a CAE project audience.
The non-pathogenic E. coli recovered from Kurtz’s home was part of a two-year-old performance art project that toured across the nation.[11] There was no subterfuge or attempt to conceal what was being attempted by any of the CAE members.
Concern for public safety was cited as a major factor prompting investigation.[12] 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.”[13] 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.”[14]
The Legal Case
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, University of Maine professor of criminal justice commented that “the real issue is what was his intent.”[15]
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).[16] 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 ATCC samples. Recipients of ATCC products are prohibited, by contract, from redistributing any microbiological samples purchased. According to the indictment (available at CAE Defense Fund, www.caedefensefund.org) basically Kurtz is charged with not being a properly registered customer with the ATCC – which he wasn’t. He did apparently 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 the transfer of the ATCC-supplied material in violation of the letter of the contract he signed – which he did.
Implications
At this writing, the case has not gone to trial. Questions about the after-effects of the investigation and indictment are already surfacing. 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 researchers 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.”[17] 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.”[18] Teitelbaum speculated that scientists will not pursue research that attracts “such negative scrutiny.”
The Kurtz investigation follows two other academic cases with bioterrorism overtones. University of Connecticut graduate student Tomas Foral was convicted of possession of anthrax-containing tissue. Texas Tech University Health Sciences Center Professor Thomas Butler, like Kurtz and Ferrell was charged with mail and wire fraud along with more serious accusations relating to illegal payments from major pharmaceutical firms;[19] he was convicted. These cases further illustrate the tough stance that the 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 Yersinia pestis (the causative agent of the plague and high on the select agent list).
The Kurtz case pulled in a bioscientist, University of Pittsburgh’s Ferrell. Before moving to SUNY-Buffalo, Kurtz had taught at Carnegie Mellon University, also located in Pittsburgh.[20] Allegedly Ferrell obtained microbes from the ATCC then transferred them – apparently as a collegial gift – to Kurtz. Rarely have academics been charged for exchange of samples. Small samples are regularly shared domestically and internationally by life and physical scientists. Many such collaborations have existed for a decade or more. Some of these may be formalized in grant proposals or co-authorships in technical papers, but more often the exchange is noted in acknowledging footnotes to a manuscript. 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.
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 is struggling to catch-up to the legal culture. Attitudes 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 who have known 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 has to change to keep up with the Justice Department’s shift in focus.
Reactive prosecution is one route that can be taken 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.[21] The Federation of Atomic 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.[22] 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 develop and be implemented from outside the scientific and technical community. Alternatively, federal investigations of 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.
It is notable that all three of these cases – Kurtz, Butler, and Foral – have focused on individuals engaged in academics, from art to molecular biology. We haven’t seen any publicized investigations of behavior in violation of bioterrorism prevention statutes directed toward private industry.
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 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.”[23] It is a legitimate question to ask how this case contributes to securing the nation from a bioterrorist attack. In the end, Kurtz and Ferrell have been charged 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.
The Kurtz case may also be valuable in terms of assessing the capability of non-technically trained individuals to generate an air-dispersed microbiological. How good of a job did the CAE artists do 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.[24] How successful was the CAE at creating a free-flowing, 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.[25] It was called Project Bacchus. How does CAE compare to Project Bacchus? The comparison should provide useful information in distinguishing a makeshift BW production facility from improvised biotechnology for peaceful purposes. What critical differences distinguish the two experimental set-ups? Most of these answers can only be evaluated by someone 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 co-option of legitimate research for malicious purposes and in protection of the civil liberties that underlie America’s freedom.
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.”[26] In the war against terrorism, neither art, science, nor democracy should be an unintended casualty.
Sources:
[1] Geoff Brumfiel, “Bacteria raid may lead to trial for artist tackling biodefence,” Nature, vol. 429 (2004), p. 690.
[2] Hal Cohen, “Artists use scientific techniques to create new forms,” The Scientist, vol. 16, no. 22, pp. 57-60, www.the-scientist.com.
[3] Eduardo Kac, “Transgenic Art,” Leonardo Electronic Almanac, vol. 6, no. 11, December 1998. Republished in: Gerfried Stocker and Christine Schopf (eds.), Art Electronica ’99 – Life Science (Vienna, New York: Springer, 1999), pp. 289-296; Eduardo Kac, “Genesis,” in Spike/Genesis, exhibition catalogue, O. K. Center for Contemporary Art, Linz, Austria, pp. 50-55. See also www.ekac.org/transgenic.html.
[4] W. Wayt Gibbs, “Art as a form of life,” Scientific American, April 17, 2001, accessed July 21, 2004, www.sciam.com; Zareena Hussain, “Science as art unites disciplines,” The Tech, May 9, 2000, www-tech.mit.edu.
[5] “Art, but not as we know it,” The New Scientist, March 2, 2004, www.NewScientist.com. See also www.lauracinti.com and www.martademenezes.com.
[6] Celeste Biever, “Bioterror grand jury trial begins for professor,” The New Scientist, June 15, 2004, www.NewScientist.com.
[7] Leonard A. Cole, Clouds of Secrecy: The Army’s Germ Warfare Tests Over Populated Areas, (Savage, MD: Rowman and Littlefield, 1990), chaps. 7 and 8; Leonard A. Cole, The Eleventh Plague: The Politics if Biological and Chemical Warfare, (New York: W.H. Freeman and Company, 1997), pp. 18, 160; G.W. Christopher, T. J. Cieslak, J.A. Pavlin, and Eric M. Eitzen, “Biological warfare: a historical perspective,” Journal of the American Medical Association vol. 278 (1997), pp. 412-417.
[8] J. Carlton, “Of microbes and mock attacks – 51 years ago, the military sprayed germs on US Cities,” Wall Street Journal, October 26, 2001.
[9] V.L. Yu, “Serratia marcescens: historical perspective and clinical review,” New England Journal of Medicine vol. 300 (1979), pp. 887-93.
[10] From the federal indictment against Steven Kurtz and Robert Ferrell, p. 11, www.caedefensefund.org.
[11] David Staba, “Use of bacteria in art leads to federal inquiry,” The New York Times, June 7, 2004, www.nytimes.com.
[12] Jonathan D. Silver, “Ex-CMU art prof entangled with Feds,” The Pittsburgh Post-Gazette, June 20, 2004, www.post-gazette.com.
[13] Brendan Coyne, “Anti-biotech artist indicted for possessing ‘harmless’ bacteria,” The New Standard, http://newstandardnews.net.
[14] Biever, “Bioterror grand jury trial begins for professor.”
[15] Ibid.
[16] Jennifer Couzin, “US prosecutes professors for shipping microbes,” Science, vol. 305 (2004), p. 159.
[17] Lynne Duke, “The FBI’s art attack: offbeat materials at professor’s home set off bioterror alarm,” The Washington Post, June 2, 2004, www.washingtonpost.com.
[18] Philip Cohen, “Recipes for bioterror: censoring science,” The New Scientist, January 18, 2003, www.NewSceintist.com.
[19] Martin Enserink and David Malakoff, “The trials of Thomas Butler,” Science, vol. 302, (2003), pp. 2054-2063.
[20] Silver, “Ex-CMU art prof entangled with Feds.”
[21] The National Academy of Science, Biotechnology Research in an Age of Terrorism, (Washington, D.C.: National Academies Press, 2004), access July 19, 2004, www.nap.edu.
[22] Stephanie Loranger, “Biosecurity Education for Biology Researchers,” www.fas.org.
[23] “Making art a crime,” L.A. Times, 15 June 2004, latimes.com.
[24] Gary Matsumoto, “Anthrax powder: state of the art?” Science, vol. 302 (2003), pp. 1492-1497.
[25] Judith Miller, Stephen Engelberg, and William Broad, “US Germ Warfare Research Pushes Treaty Limits,” New York Times, September 4, 2001, pp. 1, 10-14.
[26] “On with the show: Why scientists should support an artist in trouble,” Nature, vol. 429 (2004), p. 685.
