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A Dutch virologist is considering his full range of legal options if his government refuses to lift the restrictions it has put on his controversial bird flu research, and matters could quickly come to a head after a meeting next Monday that will be attended by U. S. observers.
The meeting will come just after Francis Collins, director of the National Institutes of Health, issued a statement on Friday saying that he and the Secretary of the Department of Health and Human Services believe this bird flu research, and a similar study done at the University of Wisconsin, should be published fully:"This information has clear value to national and international public health preparedness efforts and must be shared with those who are poised to realize the benefits of this research."
Ron Fouchier, of Erasmus Medical Center in Rotterdam, made headlines last year with the news that he had created mutant forms of the H5N1 bird flu virus which, unlike the original, could spread through the air between lab animals.
The work was part of an effort to understand how animal flu viruses can change and jump into humans and cause pandemics. But critics charge that the mutant viruses could be dangerous if they escaped the lab or fell into the wrong hands.
And the Dutch government has restricted Fouchier's ability to talk publicly about his results, using legal controls that apply to the export of technology that could be used for weapons.
On Monday, April 23, the Dutch government is holding a meeting in The Hague to discuss the issue. It's unclear when government officials will make any formal decision, but Fouchier hopes to have enough information after that meeting to plan the next move.
"This choice is not only up to me," Fouchier said in an email to NPR, explaining that he plans to speak with his research team and the board of his medical center on Tuesday to try to reach agreement on how to act.
Fouchier maintains that the export law should not apply to his lab's work, because the law contains an exemption for basic scientific research which is routinely shared internationally. In his view, the government's actions amount to censorship.
One possibility is that the government will simply lift the export control restriction and Fouchier can submit the latest version of his manuscript to the journal Science.
After all, a committee that advises the U.S. government on potentially dangerous biology recently reviewed that manuscript, with special permission from the Dutch government. A majority of the committee recommended that it be published openly. They made the same recommendation for similar research done at the University of Wisconsin by the lab of Yoshihiro Kawaoka, who was then able to publicly discuss his work at a meeting in London.
But if the Dutch government refuses to lift the export control, Fouchier could submit his paper to the journal without applying for permission and face the consequences.
Fouchier says if the export control is not lifted, that would be his preferred response. "For me personally, this is a matter of principle," he wrote in the email, explaining that he is against any form of government censorship.
A spokesperson for the publisher of Science, which is based in Washington, D.C., told NPR that their legal advisors are considering all possible scenarios and have made no decisions.
Science will have a representative at the Dutch government's meeting. And the U.S. government was invited to send observers. According to a spokesperson for the Department of Health and Human Services (HHS), four government officials are going: Nancy Cox, director of the influenza division at the Centers for Disease Control and Prevention, Jimmy Kolker, deputy director of the office of global affairs at HHS, Chris Park of the Department of State, and Larry Kerr of the Office of the Director of National Intelligence.
In his statement supporting full publication of both bird flu papers, NIH director Collins noted the Dutch government's review of the work and said: "We respect that process and value the dialogue we have with Dutch authorities toward our common goals of encouraging scientific inquiry, advancing global health, and protecting the safety and security of our populations and the wider global community."
Fouchier and his team do have other options if the Dutch government won't budge.
One possibility is that they could apply for an export control permit, but at the same time file a protest so that the case would end up in court and determine whether this would be needed in the future, according to Fouchier, who says the Dutch government has indicated that he should prepare to do that.
Another option is to bring the case to court to try to resolve matters before submitting his revised paper to the journal.
"That would mean that it will take another year before the paper gets published," Fouchier noted. He said the journal Nature would probably then go ahead and publish a manuscript describing the University of Wisconsin experiments rather than waiting to coordinate publication of the two papers together.
Fouchier points out that if the export control law truly applies to his work, "we can already be prosecuted."
After all, he spoke about his work at a conference in Malta last September, and submitted an earlier draft of his paper to Science in August, before the implications of the research started making headlines around the world and export controls were clamped down.
That means Science already has his data and could publish if they wanted to, wrote Fouchier, adding that "asking for an export permit to submit data that have already been submitted seems like a senseless enterprise to me."
Meanwhile, the U.S. Senate Committee on Homeland Security and Governmental Affairs is planning a hearing on April 26th that will look at biological security and the risk posed by legitimate biological research that could be misused.
Both bird flu studies, in Wisconsin and the Netherlands, received funding from the National Institutes of Health, raising concerns about how federally funded research proposals get reviewed. Last month, the government put a new policy in place to ensure that the risks of potentially worrisome research are assessed before studies go forward.