Bird Flu Studies Mired In Export Control Law Limbo

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Scientists who created mutant forms of bird flu want to see their research published, and an influential advisory committee recently gave them the green light after a debate that lasted for months.

But one of the manuscripts is now being blocked from publication because of Dutch legal controls on the export of technology that could potentially be used for weapons.

It's just the latest example of how complicated international export control laws have affected the debate over what to do about two studies on bird flu.

The experiments were done in the U.S. and the Netherlands and showed how to make this dangerous virus more contagious. Some people worried that revealing the details would be like publishing the recipe for a bioweapon.

Last year, U.S. government officials asked an advisory committee to weigh in. The National Science Advisory Board for Biosecurity (NSABB) recommended publishing limited information — and letting only some people see the full details.

"The government led us to understand that there would be a way to share the detailed information with individuals who had a need to know," says Michael Imperiale, a microbiologist at the University of Michigan who serves on the board.

In December, officials said they would try to set up a secure system accessible only to legitimate scientists and public health officials around the world who are trying to prepare for a future flu pandemic.

But when the government asked the committee to meet again, a couple of weeks ago, the message was different — in part because legal complications, including the export control laws, were making an information sharing system impractical.

"We were told that due to various legal and security impediments, that it wouldn't be possible to have a sharing system for only some people and not others," says Imperiale.

So the available options seemed to be either publish fully or not at all. That's one big reason why, when the committee weighed the risks and benefits for a second time, it seemed important to publish everything.

Export control laws limit the international shipment of technologies that could be used for weapons — things like rocket parts, or giant vats used to brew up microbes.

"The more complex part of export controls is when it comes to information, rather than equipment," says Alice Gast, president of Lehigh University, who recently co-chaired an expert panel that examined how these laws affect science.

Information produced by basic research is normally exempt, says Gast, who explains that "the fundamental research exemption is valid as long as you are freely and openly sharing the results of the research."

But if researchers agree to limit access, for whatever reason, that exemption no longer applies.

In the case of bird flu, researchers from both groups reluctantly agreed to go along with the board's initial recommendation on limited distribution. While publication was on hold, both U.S. and Dutch export controls kicked in.

That meant scientists could no longer freely share information with colleagues overseas. For example, when the NSABB met to reconsider its earlier decision, special export licenses had to be obtained from the U.S. and Dutch governments so the international experts at the meeting could read new versions of the research reports — and they only could see paper copies that they then had to return.

And now, even though the NSABB has said journals and scientists can go ahead and publish the papers in full, one of the research teams is still grappling with export controls.

Ron Fouchier, a virologist at Erasmus Medical Center in the Netherlands, was at a meeting in London last week and apologized for not being able to discuss his work in detail. "I've been notified by the Dutch government that in contrast to the U.S. government, they have not lifted their export control restrictions," Fouchier said.

In an email, Fouchier told NPR that he had not yet submitted a revised version of his manuscript to the journal Science, and that "export control indeed is the reason."

He noted that as soon as he formally submitted his paper to Science, the journal would have a First Amendment right to publish, and the Dutch government wants to prevent this using export control.

Fouchier said he and his lawyers believe that his work is the kind of "basic scientific research" that is excluded under the regulations. On April 23, he'll be at a meeting organized by the Dutch government to consider this whole issue.

"We need to await the conclusions from the meeting on April 23 before we can proceed with our manuscript," Fouchier wrote.