From the Web site of the American Type Culture Collection, www.atcc.com, registered customers can order a $135 strain of herpes varicella-zoster, the virus that manifests as chicken pox in humans; a $250 sample of porcine cytomegalovirus “distributed as primary porcine turbinate cells”; or freeze-dried streptococcus pneumoniae (biosafety level two), which the Centers for Disease Control call “the leading cause of bacterial pneumonia, meningitis and otitis media in the United States.” And according to a grand jury indictment issued in the Western District of New York on June 29, Steven Kurtz, an art professor at the State University of New York at Buffalo and member of the Critical Art Ensemble, used ATCC to obtain samples of two bacteria, bacillus atrophaeus and serratia marcescens, “to be used in showing the spread of bacteria in the environment.”
Kurtz, however, was not able to obtain the bacteria on his own. “I don’t have a biosafety report for my lab, nor do I have three recommenders,” he complained in an e-mail dated February 29, 2004, to his friend Robert Ferrell, chair of the human genetics department at the University of Pittsburgh. “I still need a sample of bacillus atrophaeus ATCC#9372. Can you help me out?” A few weeks later, the indictment alleges, Ferrell complied. The two men have now been charged with four counts of mail and wire fraud and face up to 20 years in prison.
It’s not exactly a crime on the order of the bioterrorism mentioned in the subpoenas issued to CAE members in May, shortly after Kurtz awoke to find his wife, Hope, had stopped breathing and called 911 for help, only to have local authorities alert the FBI’s Joint Terrorism Task Force to the presence of bacteria samples in his home. (The Erie County Department of Health declared the bacteria harmless and determined that Hope Kurtz had died of natural causes.) Nor is it a charge made possible by the Patriot Act, a simple overzealous attempt to keep America safe. The grand jury indictment may instead be proof that Kurtz’s lawyer, Paul Cambria, knew of what he spoke last June when he paraphrased former New York Chief Judge Saul Wachtler: “The D.A. could get the grand jury to indict a ham sandwich.”
No one disputes that the bacteria Kurtz and Ferrell bought for $256 are innocuous; Kurtz’s own words in the indictment show he was after only nonpathogenic material, which he planned to use in a critique of genetically modified food. “Obviously if either substance was in itself unlawful there would be a specific charge that they were in possession of an illegal substance in the indictment,” says Cambria. Instead, the seven-week grand jury investigation targeted only Kurtz’s methods.
“Under the arrangement between Pittsburgh and ATCC, Pittsburgh promised the material would stay inside its laboratory,” says Assistant U.S. Attorney William J. Hochul Jr. “These two guys ordered material pretending it was for the University of Pittsburgh, when it wasn’t.”
Cambria counters that “ATCC’s ‘material transfer agreement’ is at best a civil contract,” not covered by mail or wire fraud statutes. “Let ATCC sue them for violating their terms of sale. But they’d have to sue literally thousands of people, because thousands of people obtain this material and share it with other scientists.”
A statement issued in support of Kurtz by University of California at San Diego Professor Natalie Jeremijenko echoes Cambria’s claim: Sharing “is the basis of academic collaboration,” she said. “They’re going to have to indict the entire scientific community.”
Oddly, the case against Kurtz may turn out to have an unintended effect similar to CAE’s art projects, which sometimes call attention to inconsistencies in political thought: According to a 1994 Senate report, it was ATCC that supplied Saddam Hussein’s Iraq with several lethal bacteria, including anthrax and botulinum toxin, the most poisonous substance known. The transactions, under the Reagan-Bush administration from 1985–1989, had the full support of the U.S. Department of Commerce.