Because Fouchier and Kawaoka are funded by the U.S. NIH, their research also had to meet American biosecurity guidelines. And it did -- at least, as those codes are currently conceived.
The rules governing such American research were largely created after the 2001 anthrax scare. Following the attacks, then-Secretary of Health and Human Services Tommy Thompson ordered creation of a cross-government committee to address the dual-use conundrum, finding a way to deter terrorist or other malicious use of scientific discoveries without impeding the pace of basic discovery and invention. The National Science Advisory Board on Biosecurity (NSABB) was the outcome, formally created in 2004. In its original charter, signed by Thompson, the NSABB was supposed to review all questionable research -- every so-called dual-use study -- before experiments were executed. The NSABB was supposed to recommend special precautions, including prohibiting some experiments, and referee decisions regarding ultimate publication of discoveries. In the post-anthrax political environment, Thompson wanted a very tough NSABB, even if it meant some scientists would believe their work was constricted or censored.
By the time, however, that the NSABB convened in late 2011 to review the Fouchier and Kawaoka cases, the board's mandate had been pared down considerably. In a new charter signed by Secretary of Health and Human Services Kathleen Sebelius in 2010, the board functioned in a strictly advisory role, offering no review of experiments themselves. Its primary clout was over publication of the results once the experiments were performed. The scientists who served on the NSABB were themselves opposed to any pre-experimental regulation and had only modest faith in the powers of publication restriction. In 2007, the NSABB advised weakening its own authority, arguing that "a code of conduct can make good people better, but probably has negligible impact on intentionally malicious behavior."
Britain's Research Councils advised a similar policy in 2007, admonishing the government of then-Prime Minister Gordon Brown that, "systems should be based on self governance within the academic community." Similar advisories flowed from scientific expert bodies to governments across Europe, Japan, India, China, South Korea, and several Latin American countries. It seemed scientists wanted no additional oversight over dual-use research and no limits on publication of their discoveries.
"The rules governing the publication of research results follow from the rules for the performance of research," states the Dutch code. "Here too, publication is the rule and non-publication the rare exception."
Following Fouchier's dramatic September speech in Malta, both he and Kawaoka submitted their studies for publication to the American journal Science and Britain's Nature. The NSABB intervened, asking the journals to refrain from publishing pending the board's review. Shortly before Christmas, the NSABB advised that publication of the papers was OK so long as the actual methods used to create the superbugs were excised or so obscured as to be useless guidance for would-be terrorists. That put the entire burden of ethics and global dual-use biosecurity on the shoulders of the editors of these journals. Government punted, instructing publishers to please use their heads.
Bruce Alberts, the current editor of Science, faced similar instruction from the U.S. government in 2005 when Stanford University's Lawrence Wein and Yifan Liu, then also of Stanford, submitted a paper titled, "Analyzing a bioterror attack on the food supply: The case of botulinum toxin in milk." The authors carefully analyzed the expected human kill rates produced by inserting botulinum toxin at various stages of milk production in the United States, from the actual milk farm all the way to supermarket shelves lined with cartons. "We have a reasonably accurate estimate of the number of people who could be poisoned," the authors wrote -- as many as 568,000 victims, with death rates unknown but undoubtedly frighteningly high.