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110 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

the CDC™s legitimacy. The process applies elaborate criteria and engages
esteemed scienti¬c intellect. Legal grounds to challenge a decision are
limited to abuse of process “ exceptionally rare in these circumstances.
Because the CDC™s process for composing the list is legitimate, its author-
ity to impose obligations for handling and transferring select agents is
undeniable.
How can this type of oversight be internationalized? The CDC has ana-
logues in other nations, but no comparable authority exists at the interna-
tional level. The World Health Organization (WHO) could stipulate which
pathogens should be controlled but has refused, to date, to do so. Instead,
it alerts States about potential risks and suggests that each State identify
the agents it believes pose a threat worthy of preventive and responsive
measures. States should focus on the “biological agents known to have
entered the process of weaponization during the Cold War, in other words,
agents which have been used in the past” and “agents condemned under
the BWC.”5 The WHO expects some disparity as to agents of concern:
“[A]ppraisals and priorities will certainty differ from country to country,
but . . . prudent Member States will have at least some organization and
some plan in place to deal with deliberate releases of biological and chem-
ical weapons.”6
The WHO™s position is suffused with diplomatic timidity that leads to
the lowest and most worthless level of permissiveness. If each State de¬nes
its own list of violence-relevant pathogens, then there is no standardized
list whatsoever. Because specimens are readily transferred across national
borders, different lists of agents produce incoherence that undermines
rational regulatory controls. Very recently, the WHO has taken a small
positive step: its newly adopted International Health Regulations specify
diseases that “may constitute a public health emergency of international
concern.”7 This list does not pertain directly to possession of pathogen
seed stocks, yet it is an initial step toward WHO assumption of author-
ity in this context. Notably, the Animal Health Organization (Of¬ce des
Epizooties, OIE) has done better with regard to animal pathogens.8
An international body (presumably the WHO for human pathogens
and the OIE for animal pathogens) should be authorized to compile a list
of “select” pathogens, with prescribed processes for promptly expanding
or revising the list. Whether that body would adopt the CDC “select agent
list” or a different list of pathogens is not the point here; any chosen list
will soon change. What is important is that an of¬cial body comprised
of well-informed scientists must be authorized to make determinations
pursuant to law.
111
COMPLICATION: WHAT LAW ENFORCERS SHOULD STOP

Pathogen Census
A globally accepted list of potentially dangerous pathogens is the necessary
basis for a census of those pathogens™ location and movement. Every State
should identify the facilities within its territory that have stocks of any listed
pathogen. Maintaining international databases is absolutely essential to
properly record information about these pathogens. Today, databases of
culture collections are incomplete. The good news is that the World Feder-
ation for Culture Collections (WFCC) has established guidelines for oper-
ating micro-organism culture collections;9 organisms listed in its World
Data Centre for Micro-organisms (WDCM) are available only to bona ¬de
users who maintain proper records. The bad news is that the WFCC is a
voluntary organization “ a club “ of well-meaning bioscience institutions.
It does not govern nonmember activities. The problem, of course, is that
bio-offenders are unlikely to join the WFCC “ its guidelines are not directed
at ¬nding or stopping them.
Lacking comprehensive records about pathogens™ locations, law en-
forcers cannot optimally prevent or prosecute bioviolence. Without re-
cords that might suggest who possessed pathogens, when, and what has
become of them, it is essentially impossible to investigate suspected crim-
inality. Conventional law enforcement would be far less effective if there
were no data collection systems (e.g., ¬ngerprints, gun registration, felony
records, etc.). Yet, in connection with bioviolence, no comparable systems
exist.

Pathogen Marking
One innovative step that could help prevent bioviolence is to require
selective pathogen marking. On DNA strands, there are spaces that serve
no apparent biological purpose. Bioscientists could insert “markers” or
“barcodes”; this technique could enhance identi¬cation and tracking of
speci¬c pathogen strains. If each registered laboratory has a distinctive
marker, and if an additional marker could be added if the strain is trans-
ferred to another laboratory, then there would be a set of markers that
indicate where the pathogen came from and who might have worked with
it. If that pathogen is later found in an inappropriate location or if it has
been used to instigate bioviolence, there would be information that could
be very relevant for holding bio-offenders accountable.
Pathogen marking has provoked controversy among bioscientists. It is
a bother, although it is unclear how much. Only the small minority of bio-
logical substances that are select agents would have to be so marked, and
the costs of emplacing and tracking such markers are not considered to be
112 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

substantial.10 The major objection is that such markers would be imper-
fect. Many pathogen strains already in circulation could not reasonably
be marked (much less be retroactively marked), and it would be easy to
remove markers on strains that are marked. (It is curious that, according
to these objectors, marking pathogens would be a burden but removing
those markers would be trivial.)
These objections to marking select pathogens belie a profound misun-
derstanding of how to prevent crime, especially crime that involves sophis-
ticated techniques. Although pathogen marking would be initially incom-
plete and subject to manipulation, a potential bio-offender who wants
to avoid accountability would be deterred. Seeking to covertly weaponize
a laboratory strain yet knowing that many pathogen strains are marked,
bio-offenders could be certain that the strain is unmarked only if they
scrutinize that strain and remove any existing markers “ another hurdle
that would need to be surmounted.
There is another virtue. Worldwide, some managers of legitimate lab-
oratories might be less than perfectly attentive to their security responsi-
bilities, not out of malevolence but just because they are lazy or wanting to
avoid expense. However, if dangerous pathogens are marked, then diver-
sion followed by misuse could be traced back to the lab from where they
were diverted; the lackadaisical facility director could be held accountable
for dereliction of oversight responsibilities. Under many nations™ laws, a
facility that is the source (even unwittingly) of diverted pathogens that
are catastrophically used would be liable for the ensuing losses. Knowing
that possibility, these scientists might take their responsibilities far more
seriously “ at least their lawyers or insurers will.
More generally, it is imperative to know where the most dangerous
pathogen strains are located, and police must have records that can read-
ily be used to conduct investigations and pursue suspicions. Even if these
measures are only partially effective, bio-offenders will have to consider
the heightened risk of exposure and punishment, and scientists respon-
sible for security will have to consider their potential accountability if
something that they could have prevented goes horribly wrong.


Denying Access to Laboratories
Improving security at biolaboratories is critical to preventing bioviolence.
At which laboratories? It would waste resources to regulate every site that
could cultivate pathogens including, for example, school science labora-
tories. Only the very few laboratories that pose the most serious concern
113
COMPLICATION: WHAT LAW ENFORCERS SHOULD STOP

should receive substantial attention. Importantly, safeguards to foil crim-
inal diversion, including physical security and identi¬cation of potential
risks, should be graduated based on the assets that require protection.
Three factors should comprise this equation.

1. What agents could be diverted? How potentially dangerous are the
agents, and how easily can they be used as a weapon? Relevant
factors include the availability of weaponizeable strains, their har-
diness and ease of production, how they could be disseminated,
and how much specialized knowledge is needed to use the agents
as weapons.
2. What could be the consequences of using those agents for
bioviolence? Relevant factors here involve infectious dose, incu-
bation period, pathogenicity, modes and ease of transmission, and
availability of post-exposure treatments.
3. What are the risks associated with the facility? Relevant factors
here include its location, its design, the number of people who
have open access, and whether there are physical security devices
(e.g.,cameras, locks, and so forth.).11

Security standards for laboratories are well understood. There are glob-
ally accepted measures to prevent injury to laboratory employees or to
the surrounding environment. These measures, generically referred to as
biosafety, include procedures for handling lethal pathogens to avoid acci-
dental release. The WHO Laboratory Biosafety Manual provides in-depth
guidelines for maintaining safe laboratory conditions. The WHO and var-
ious other international organizations encourage States to prepare codes
of practice for safely handling pathogens and to assess risks.12 Moreover,
the WHO and the OIE each have reference and collaborating facilities
that standardize laboratory practices within a cooperative international
network.
Biosafety measures are already in practice in many nations and could
be expanded to address bioviolence concerns. External threats can be
averted by physical barriers such as guards, gates, closed circuit cameras,
and electronic access codes or biometric security devices. Internal threats
can be averted by data and IT system security, security policies for person-
nel, policies for accessing select agent areas, and specimen accountabil-
ity. Additional measures include prohibiting scientists to work alone with
especially dangerous pathogens and monitoring exits to ensure that no
materials are illicitly removed.13 Transit threats can be averted by requir-
ing con¬rmation of receipt of select agents into the laboratory as well as
114 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

tracking transfer or shipping of select agents from the laboratory. If threats
materialize, there should be emergency response plans and reporting
mechanisms for security breaches. Altogether, improved security should
be aimed at the most likely threats that have the most capacity to cause
harm.14
The problem is not a lack of guidelines “ the problem is that the guide-
lines that exist are not binding. In some countries, especially countries with
maturely developed bioscience sectors, national laws effectively require
compliance with comparable standards. In most parts of the world, how-
ever, these standards are at best aspirational; there are no consequences for
noncompliance. For example, in a recent study of biolaboratories holding
extremely lethal pathogens in Asia, most pathogens were supposed to be
kept under biosafety level (BSL) 3 conditions; however, almost two-thirds
of researchers admitted that they comply with only BSL-2 practices.15 More
generally, the ¬‚aw of voluntary standards is that they are observed only
by the willing. Noncompliers need not be malevolent; they need only be
careless. There is no way to know about labs that fail to implement or fully
observe these standards.
Making laboratory security standards binding will make it easier to
prosecute operators of covert facilities if and when they are discov-
ered. Covert facilities will most likely not implement security measures
much less obtain of¬cial registration. Thus, failure to comply with these
requirements should, in and of itself, lead to prosecution. Indeed, many
experts agree that the easiest and most immediately bene¬cial step to pre-
vent bioviolence would be to make internationally recognized laboratory
security standards legally binding. Laboratory administrators would be
required to account for the pathogens that they possess and the person-
nel who have access to them. They would also have to evaluate how an
adversary would attempt to divert, steal, destroy, or release those assets.
Moreover, a globally enforced compliance system for biolaboratories will
generate copious amounts of data that could be useful to law enforcement
interdiction efforts.


Denying Access to Equipment
Worldwide, there is a virtually unregulated ¬‚ow of very advanced bio-
equipment. As this equipment is ubiquitous, trying to limit its distribution
is probably a hopeless undertaking. Export controls on this equipment are
porous, and the list of potential suppliers is rapidly growing. Conscien-
tious efforts to limit equipment exports serve primarily to disadvantage
115
COMPLICATION: WHAT LAW ENFORCERS SHOULD STOP

the controlling State (and its industries) to the advantage of less circum-
spect States.
Efforts of States to make collective decisions to control exports raises
issues about freedom of trade, and actions to enforce those controls have
the appearance if not the reality of a cartel. An even more important objec-
tion to restricting distribution of bioequipment has to do with the global
development of bioscience. An active market in sophisticated bioequip-
ment promotes the spread of legitimate science. Even if restraints are not
meant to produce a cartel, they will likely slow down the distribution of
technology “ that is, after all, the basic purpose for the restraint.
Law enforcers should be able to track the traf¬c in bioequipment in
order to detect wrongful activity. A positive idea is to tag sensitive equip-
ment with positioning devices that expose its location wherever it goes.
For legitimate science, a GPS locational device would barely be notice-
able. Law enforcers could track sophisticated machinery that is oper-
ated outside of authorized facilities and be alerted to transfers of critical
items. Tagging equipment is the corollary to marking pathogens, and it has
evoked similar objections that it will not effectively stop misuse. Granted,
the enormous amounts of equipment already in circulation cannot be
tagged. Yet over time, new tagged equipment will replace older untagged
equipment. Another objection is that transponders might have to be
applied to a huge volume of devices and machinery, but transponder tech-
nology that was yesterday™s breakthrough innovation is now remarkably
pedestrian.
Databases that record the location of bioequipment could usefully con-
tribute to understanding where threats of bioviolence might emerge.16
If we know where biolaboratories that handle dangerous pathogens are,
then lining up equipment location with those legitimate facilities is sim-
ple. Attention should focus on the equipment in places where there is not
a known facility. Perhaps these anomalies can be innocently explained, yet
law enforcers would have key information that might enable early inter-
diction.
One advantage of tracking equipment is to diminish the need for export
cartels; properly registered laboratories should be able to get what they
need. Equipment exporters would have to declare their exports “ this infor-
mation would go into an international database. An electronic trail would
record its transfer cycle from carrier to national destination through import
registration. Recipients would also have to be properly registered and have
to declare where the equipment will be used. If the records match, there is
reason to be con¬dent that the transfer is for legitimate purposes.
116 BIOVIOLENCE: PREVENTING BIOLOGICAL TERROR AND CRIME

Moreover, bioequipment that has outlived its useful life should be ver-
i¬ably destroyed. Equipment that has lost utility for legitimate scienti¬c or
medical purposes might still have utility for misuse. Having better infor-
mation about the location of equipment will facilitate monitoring and
destruction of discarded equipment.17
Most important, a bio-offender could not know for sure if his newly
obtained equipment (whether bought or stolen) is tagged; using it might
reveal his covert preparations. He might, therefore, opt for older and less
pro¬cient equipment rather than risk detection of his entire plan by seek-
ing the best equipment. If he forfeits technical capacity for secrecy, he may
be left with unresolved technological challenges. From his perspective, this
is one more consideration to dissuade him from pursuing bioviolence.

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