CAMLAW: Complementary and Alternative Medicine Law Blog

Draft rule on biosecurity raises fear of scientific censorship

A draft rule by the National Science Advisory Board for Biosecurity, or NSABB, to govern life sciences raises fear of scientific censorship.

The able report in Wired, Will Bioterror Fears Spawn Science Censorship, written by a Stanford law professor, warns that regulation must be more tightly crafted to ensure compliance without creating an undue chilling effect.

Apparently, the current proposal targets ""research that, based on current understanding, can be reasonably anticipated to provide knowledge, products, or technologies that could be directly misapplied by others to pose a threat to public health and safety, agriculture, plants, animals, the environment, or material." These terms are admittedly broad and subject to abuse. Really, almost any research can be reasonably anticipated to be used or misused. At the crudest level, rub two flints together and you get a fire, then kitchens, cities, civilization -- or sharpen that flint and you have Cain and Abel.

Author/Professor Granick, who teaches Stanford's Cyberlaw Clinic, observes:

Rejecting new regulation doesn't mean we have to be subject to the whims of bioterrorists. Voluntary self-regulation, ethical training, peer review and additional practices currently followed by recombinant DNA researchers, microbiologists and other scientists all have a track record of success. And smart federal laws can control access to pathogens -- and prohibit dangerous practices -- while steering clear of restricting scientific publications.

Until recently, U.S. policy has been to allow the publication of information, with only narrow controls on classified information. Then, in 2002, the president signed the National Security Act, which requires federal agencies to create procedures to protect "sensitive but unclassified" knowledge. The statute is unclear about whether these procedures should take the form of voluntary guidelines, or regulations with the force of law, and whether they'll apply outside of federal agencies. But the NSABB report appears to be part of the effort to craft such procedures.

The admonition to craft tailored regulation is apt, and in keeping with the maxim that legal rules should be crafted as precisely as possible so as to avoid being overly broad and vague, particularly if they contain penal provisions. The balance between fighting terror and other existential risks, and preserving freedom, is a constant policy tension worth careful and considered navigation.
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Law Offices of Michael H. Cohen offers general corporate legal services, litigation consultation, and expertise in health law with a unique focus on alternative, complementary, and integrative medical therapies. The firm represents medical doctors, allied health professionals (from psychologists to nurses and dentists) and other clinicians (from chiropractors to acupuncturists), solo entrepreneurs, hospitals, and educational and health care institutions.

Michael H. Cohen is Principal in Law Offices of Michael H. Cohen and also President of the Institute for Integrative and Energy Medicine (also known as the Institute for Health, Ethics, Law, Policy & Society), a forum for exploring legal, regulatory, ethical, and health policy issues involved in the judicious integration of complementary and alternative medical therapies (such as acupuncture and traditional oriental medicine, chiropractic, massage therapy, and herbal medicine) and conventional clinical care. The most recent published book by Michael H. Cohen on health care law, regulation, ethics and policy pertaining to complementary, alternative and integrative medicine and related fields is Healing at the Borderland of Medicine and Religion, which follows Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (1998), Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (2000), and Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health Care and Healing in Human Transformation (2003).

Health care and corporate lawyer Michael H. Cohen is licensed has been admitted to the Bar of California, Massachusetts, New York, and Washington D.C., and to the Bar of England and Wales as a Solicitor (non-practicing).
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