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Chapter 14, Biocrimes and Biotechnology

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 Chapter 14
Bioengineering & Biocrime
Victoria Sutton, MPA, PhD, JD1

1.0 Introduction to the Biotechnology Revolution and Crime

The basic operating system of life on earth is the carbon-based DNA molecule,
replicating life with amazing precision. In the course of humanity’s curiosity in it we have flown
very close to the sun, first, in our unraveling of the structure of DNA and then, learning to hack
it. Laws and regulation and ethics, if we even know what should be an ethic, are the societal
constructs that will keep us from the same fate as Icarus. If that is not enough of a threat,
accidentally or maliciously, the misuse of this incredible technology looms over the laboratory
bench, the hospital, the pharmaceutical lab, the military lab and the family basement. The new
age of biocrime is upon us.
We have been standing on this precipice for some time now. The biotechnology
revolution, sparked by the 1950s discovery of the DNA double-helix by James Watson and
Francis Crick, pulled the curtain back on the human operating system in the first half of the
twentieth century.2 Manipulating DNA to perform useful tasks with a purpose of making our
quality of life better, grew exponentially, from food to pharmaceia to lifestyle improvements and
better forensics that worked both to convict and to exonerate criminals who might have escaped
prosecution in an earlier time --- or may have been wrongly convicted.
Accessibility to these discoveries has also seen vast expansions, not only making the
benefits and products of this revolution available ubiquitously, but also accessible as tools. The
step which changed the tedious work of genetic engineering to component building like a Lego
project, was synthetic biology, ushered in with the 2000s. Building biological machines no
longer required graduate student training to manipulate DNA—now high schools students could
do it in their basements or garages, with minimal instruction.3 These next generation rebels call
themselves, “biohackers”.4
Internationally, the threat of biological terrorism is primarily concerned with specific
disease-causing agents, and some toxins produced by them, but the drafters of the Biological
Weapons Convention had the foresight to include in the text of the treaty a regular review that
“[S]uch review shall take into account any new scientific and technological developments
relevant to the Convention”.5 Specifically, the conferences of the parties (COPs), which take
place approximately every five years, have a standing agenda item to review the advances in
biotechnology and take them into account in their interpretations of the Biological Weapons
Convention, recently renewing that commitment.6

1
Victoria Sutton, M.P.A., Ph.D., J.D., Paul Whitfield Horn Professor; Associate Dean for Research and Faculty
Development; Director, Center for Biodefense, Law and Public Policy; Texas Tech University School of Law,
[email protected].
2
See generally J.D. Watson & F.H.C. Crick, A Structure for Deoxyribose Nucleic Acid, 171 NATURE 737 (1953).
3
Jon Mooallem, “Do It Yourself Biology,” The New York Times, (Feb. 10, 2010) at
http://www.nytimes.com/2010/02/14/magazine/14Biology-t.html?_r=0 (last visited Mar. 28, 2016).
4
PBS tries to capture the meaning of biohacking. See http://www.pbs.org/newshour/updates/biohacking-care/
5
Art. XII, Biological Weapons Convention.
6
It was agreed to have a standing item to discuss advances in biotechnology at each intercessional meeting
between 2011-2016 leading up to the Eighth Review Conference. Seventh Review Conference of the Parties to the
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and

1
 Like the course of emergence in almost all emerging technologies, the first uses of the
technologies may not be useful and amount to little more than “parlor tricks,” such as in the case
of synthetic biology, building bacteria that smell like bananas or in the case of nanotechnology,
writing IBM’s name in nano-size with atoms that could only be seen with a microscope. This
“parlor tricks” stage lasts only until creative minds parlay these tricks into powerful uses. For
example, the obscure extremophile bacteria living in the Yellowstone National Park Geyser with
the ability to replicate under high temperatures, has an enzyme that can withstand denaturization
in the extreme heat, unlike almost all of the rest of life, thus enabling it to continue the
replication of its DNA. Substituting this useful enzyme to the problem of DNA replication in the
lab, where the process required alternating high temperatures with normal temperatures to avoid
denaturing the required enzymes, changed the world for forensics and research. This also
resulted in a Nobel Prize for the scientists who thought of it and did it.7 Imagining the
possibilities with the bio-tools of nature is laid out before us as a feast for humanity with visions
that will make our lives incredibly wonderful or frighteningly horrific. Finding the place between
these utopian and dystopian views that will ensure a safe voyage for humanity is where the rule
of law becomes so vital.
So it follows that the leaps in technology have also made it possible to use these
discoveries to do great harm in the hands of the malevolent individual or nation with increasingly
less talent, skill, and knowledge, making the rule of law all the more important to society. The
example of synthetic biology, so accessible even to individuals with a weekend of training, has
opened our eyes to the possibilities of popular biology unfettered by traditional professional
societal norms. But it has also opened the door to seeing the societal norms that impede
technological progress, like the patent system that overlaps and over-reaches until the field of
study is grid-locked into stalemate until the obligatory period of time passes. These new rebels
have no time to wait, and rejection of patent protections is but a small sacrifice in their heady
transformation of biotechnology and society.
These parlor tricks and biohackers raise no alarming call for wrong-doing, but how has
the law kept pace with the malicious and inventive criminal-minded among us? Particularly, how
has international law kept pace with the technologies that might evolve from the biotechnology
revolution? To what degree can the rule of law control or contemplate what is required to protect
against the greatest unpredictable threat of all – Mother Nature? Such laws would have to be
broad and flexible in order to adapt to this rapidly changing technology. Some of these succeed
in this new world and others will become less useful. A closer look at these in the next section
can shed light on this changing environment and our use of the rule of law.

2.0 Biotechnology does not recognize borders; so what can we expect from the rule of law
in this vitally important international community?

2.1 Mother Nature’s Unpredictable Menagerie

Toxin Weapons and on Their Destruction, Dec. 5–22, 2001, Final Document of the Seventh Review Conference, 20–
21, U.N. Doc. BWC/CONF.VII/7 (Jan. 13, 2012), available at
http://www.unog.ch/80256EDD006B8954/(httpAssets)/3E2A1AA4CF
86184BC1257D960032AA4E/$file/BWC_CONF.VII_07+(E).pdf [hereinafter Seventh Review Conference, Final
Document].
7
Kary Mullis, was awarded the Nobel Peace Prize for Chemistry in 1993 with Michael Smith.

2
 The turn of the millennium saw the anthrax attacks originating in America around the
events of 9/11 (2001), then continuing the terror of the attacks to the rest of the world. This was
soon followed (2003) by the first emerging infectious disease of the millennia, SARS,8 waking
the world with an unexpectedly rapid swath of death around the globe. Afterward, the World
Health Organization responded by accelerating the development of the International Health
Regulations (IHR) amendments from what had become a moribund version from earlier
decades.9 The new IHR (2005) would take into account rapid travel and the spread of emerging
infectious diseases with the demand that nations must disclose and cooperate in controlling the
invisible threats.10 Entering into force in 2007, the IHR became the world’s first binding,
international public health law.
Shortly after the IHR became binding law, the swine flu of 2009 brought Mexico to its
knees in a matter of weeks. Mexico was the first nation to test the new IHR and they performed
courageously in complying with the openness required of the IHR, despite the devastation to
their tourism industry.
Around five years later, West Africa suffered the worst Ebola epidemic in human history
(2012-2016), in a region of Africa not typical for Ebola (2012-2016). The deadly hesitancy to
use the International Health Regulations by the World Health Organization, led to Ebola’s rapid
spiral out of control for the local authorities, spilling into the airways of the world, reaching
Europe and North America as its spread grew. The Ebola events showed the world, if there was
ever any doubt, we are not in control of Mother Nature, the world’s scariest bioterrorist; and
hesitancy to address a historically sinister disease when it makes a bold appearance --- is a
mistake.
Meanwhile, in the Western Hemisphere, chikingunya virus, arrived (2013) to the
Caribbean from West Africa and has spread rapidly into every point in this Hemisphere.11 Not
far behind, Zika arrives in the Western Hemisphere, also a mosquito-transmitted virus with a
new set of symptoms affecting the unborn. Brazil was the first to set off an alarm that symptoms
such as microencephaly may be associated with Zika virus infections of pregnant mothers.12
The international rule of law with the first binding international regulations for global
public health threats, has brought a much needed maturity to global public health controls, driven
by not only the needs of a global commons with shared risks, but also the self-interests of
nations. The possibilities of biocrimes using emerging infectious diseases, confusing deliberate
with natural infections is realistic. The effort to create a protocol to analyze the difference is
another tool13 that has been created by the World Health Organization to be used in conjunction
with the International Health Regulations algorithm which is used to analyze the risk severity of
an outbreak. This acknowledgement by the World Health Organization that addressing a
deliberate attempt to use biological weapons is within their scope of authority is an
unprecedented action. This action has extended WHO to the edges of their chartered authority
into deliberate and criminal areas once considered solely the domain of nations’ law enforcement
authorities and Interpol.

8
Severe Acute Respiratory Syndrome, http://www.cdc.gov/sars/about/fs-sars.html (last visited 4-8-2016).
9
International Health Reglations (1969).
10
International Health Regulations (2005).
11
http://www.cdc.gov/chikungunya/ (last visited 4-8-2016).
12
http://www.cdc.gov/zika/ (last visited 4-8-2017).
13
http://www.who.int/csr/resources/publications/deliberate/WHO_CDS_CSR_EPH_2002_16_EN/en/ (last visited
4-8-2016)

3
 2.2 Human Biohacking: Risks and Opportunities

The biotechnology revolution has given us longer and healthier lives due to antibiotics,
vaccines and countless other variations on other biotechnologies.14 With every amazing
advancement, the criminal-minded among us, violate social norms to turn these new tools against
us using the same amazing advancements. The adaptability of crime to the opportunity tracks
closely with the adaptability of opportunistic infections, waiting for the right time, the right
conditions and the right tools. The inevitable dual-use phenomenon15 doggedly accompany our
grand successes, and a malevolent use by its very nature comes with every virtuous use, almost
without exception. The U.S. government has a program to oversee this possibility called the
“Dual Use Research of Concern”,16 focusing on the federally funded work that could pose
serious threats to public health if misapplied in criminal ways.
Not until the 20th Century did humankind recognize that using weapons developed with
biotechnology and diseases outweighed the consequences both directly and indirectly to those
who used them. In banning the use of biological weapons by the United States, U.S. President
Richard Nixon said, “[M]ankind already carries in its own hands too many of the seeds of its
own destruction.”17 This ban was the leadership that was needed for the rest of the world to
follow. In 1972, the Biological Weapons Convention was drafted under the scope of the United
Nations work toward “peace and security”, and entered into force in 1975.
But a question of what exactly should be banned, was critical to maintaining the
effectiveness of a treaty like the Biological Weapons Convention. The right balance had to be
struck between prohibiting the possession and use of deadly diseases as weapons and allowing
the scientific community to conduct valuable and life-saving research. This rapid development in
biotechnology research had already begun and the drafters had the foresight to provide for this
changing body of knowledge, with a view toward reviewing the definitions sections of the
Convention from time to time.
The Biological Weapons Convention (BWC) defines biological weapons as “[m]icrobial
or other biological agents, or toxins whatever their origin or method of production, of types and
in quantities that have no justification for prophylactic, protective or other peaceful purposes.”18
Recognizing the uncertainty in the next several generations of biotechnologies, the BWC
provides for the meeting of the parties five years after entry into force, or earlier upon parties’
request to review the operation of the Convention, with a view to assuring that the purposes of
the preamble and the provisions of the Convention, including the provisions concerning
negotiations on chemical weapons, are being realized. Such review shall take into account any
new scientific and technological developments relevant to the Convention.19 The scope of this
definition has been expanded to include new discoveries with each succeeding Conference of the

14
See generally, Victoria Sutton, Law and Biotechnology (Carolina Academic Press, 2007).
15
Dual Use Research of Concern (DURC) is the misapplication of research to cause serious harm to public health.
The complete definition can be found here: http://osp.od.nih.gov/office-biotechnology-activities/biosecurity/dual-
use-research-concern (last visited 4-8-2016).
16
Id.
17
25 Nov. 1969, Pres. Nixon, 462 - Remarks Announcing Decisions on Chemical and Biological Defense Policies and
Programs, The American Presidency Project at: http://www.presidency.ucsb.edu/ws/?pid=2344.
18
Art. 1, Biological Weapons Convention.
19
Art. XII, Biological Weapons Convention.

4
Parties (COP), roughly every five years. This has become increasing difficult to fit new
technologies within the confines of Art. I of the BWC, drafted in 1972.20
Recognizing the limitations of definitions alone, the Conference of Parties, during the
BWC's Second Meeting, adopted the Confidence Building Measures (CBM) mechanism to
implement Articles V and X of the BWC.21 CBMs are defined categories of actions that
countries’ institutionalize as a way of demonstrating their compliance and commitment to
banning biological weapons. The BWC Administrative Unit agrees to provide confidentiality to
Parties in exchange for disclosure of these actions by the Parties. In one review of this
enforcement mechanism by the BWC Administrative Unit they found that scarcely 18 of the 190
members had implemented measures to address dual use biological equipment and related
technology.22 Import controls were the widest single mechanism used to control the threat of
biological weapons yet only 59 of 190 member countries required authorization for export and
import of dangerous biological agents and toxins. In all, less than one third of the 190 members
had contributed anything at all to CBMs, an indication of very weak, global compliance.23
International law is slow to develop principles and practices, and all indications are that
this is an area that is made even slower by the uncertainties in a rapidly changing technology.
The only international treaty designed to prohibit a single class of weapons, the BWC, is
straining to limit the risks of criminal use of biological weapons that expand each year with new
and creative biotechnological tools.

3.0 Biotechnologies of the Future: The Possible, the Probable and the Certainty of
Biocrimes

The advances in biotechnology have made it possible to map the human genome, then to
map the genome of many other organisms, and finally to create vast databases to store this
bioinformation to select and build what these human tools can imagine. Yet, the celebratory
sounds were still echoing when we realized this new skill of mapping the genome merely gave us
a map without knowing very much about it or what made it function, giving birth to the new
field of proteomics, or the proteins produced by the genes. This science explores the proteins that
carry the signals to shape forms of life in its many variations, not only between species and
subspecies but from individual to individual.
The ability to synthesize genes and to build better fruits, crops, domestic animals and fish
silenced the global concern of worldwide starvation from the limitations of traditional
agriculture, when simply growing more food became widespread with this biotechnology.
Controversial, yet so attractive to the farmer who could grow yields beyond anything in history,

20
Victoria Sutton, “Emerging Biotechnologies and the 1972 Biological Weapons Convention: Can it Keep Up with
the Biotechnology Revolution?” Special Edition: New Technology, Old Law: Rethinking National Security,” 2 Tex.
A&M L.R. 695-718 (2015).
21
Second Review Conference of the Parties to the Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Declaration, 2, 7,
U.N. Doc. BWC/Conf.II/13/ II (1986) [hereinafter Second Review Conference], available at
http://www.opbw.org/rev_cons/2rc/docs/final_dec/2RC_final_dec_ E.pdf.
22
See Seventh Review Conference of the States Parties to the Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final
Document of the Seventh Review Conference, 1, U.N. Doc. BWC/Conf.VII/INF.8 (2011).
23
Victoria Sutton, “Biodiplomacy: A Better Approach to Dual Use Concerns,” 7 St. Louis U.J. Health L. & Pol'y 111
(2013).

5
genetically modified organisms are grown in almost every part of the world, today, and almost
half of four major crops are genetically modified ones.24 But as with every virtuous use there is
almost a certainty that its very strength may be a weakness in biotechnology. In this case, it is the
uniformity of the genome, itself, that makes it vulnerable to human or natural devastation from a
single plague exploiting its single weakness. A single plant plague that exploits a vulnerability of
a genetically modified crop, anywhere in the world, could destroy a good part of the world’s
crop. A singular plague could present the same threat to farms with uniform, genetically
modified salmon.
The costs of mapping and engineering genes have dropped in accordance with Moore’s
Law, which indicates there is an exponential drop in cost and thus, availability to the public of
any emerging technology. However, in this case, these genetic tools have decreased in cost at a
rate five times faster than the drop in computer costs.
The development of component engineering for genetics took flight in the mid-2000s
with synthetic biology. Synthetic biology is the Lego blocks of building life, making it simpler
and much faster for building genetic alterations of bacteria, for example. One of the first “parlor
tricks” of this technology was to make bacteria smell like bananas. However, this new
technology has exceeded the review authority of regulatory frameworks in some cases. For
example, Craig Venter, credited with being first with NIH in mapping the human genome,
sponsored a May 2014 report that warned: “Genetically engineered organisms are increasingly
being developed in ways that leave them outside of APHIS’ authority to review, and synthetic
biology will accelerate this trend.”25
The age of biocrime could very likely take advantage of these vulnerabilities.

3.1 Genomic Crimes

The popularization of do-it-yourself (DIY) biology has made it possible for high school
students and undergraduates with no microbiology background to engineer DNA with
components in the new field of synthetic biology. No longer do you need to string together
pieces of DNA and hope for the best. Now, components designed like Lego blocks that fit neatly
together can be used to greatly accelerate the genetic design process. For example, inserting a
gene that causes a plant to glow in the dark can be done by almost anyone, now, with a weekend
of training, made possible with synthetic biology. More recently, the development of the
CRISPR tool, makes the original genetic engineering task that took weeks and months take mere
hours with greater precision in inserting or deleting a single gene, unlike the much cruder tools
of the past.
The rapid development of these tools, the ten-fold decrease in cost, and the ubiquity with
which it is being used by anyone with an interest has increased the design possibilities. The
iGEM competition is a gathering place for teams inspired to design a useful or creative project
with synthetic biology sharing the information and advancing the art. Safety – and the Federal
Bureau of Investigation (FBI) --- are never far away from this gathering. A culture of safety and
being aware of the power of these tools is a reminder that this is a powerful game requiring great

24
49% of cotton, soybeans, canola and maize grown worldwide are genetically modified. See
http://www.isaaa.org/resources/publications/pocketk/16/ (last visited 4-8-2017).
25
Sarah R. Carter, SYNTHETIC BIOLOGY AND THE U.S. BIOTECHNOLOGY REGULATORY SYSTEM: CHALLENGES AND
OPTIONS (J. Craig Venter Inst. 2014), available at http://www.jcvi.org/cms/research/projects/synthetic-biology-
and-the-us- biotechnology-regulatory-system/overview/.

6
responsibility. Using the “parlor games” analogy, iGEM competitors have passed the “parlor
trick” stage after a number of years, and now the inventions that are built are truly impressive.
The possibilities, endless. The Federal Bureau of Investigation has rightly recognized that being
a part of the process by being at iGEM is “walking the beat” of the new biotechnological streets
of society.
Biocrime may have a more difficult time taking root in these communities but it does not
prevent the “lone wolf” ambitions of biocrime.

3.2 Genomic Misdeamenors

The identification of genomic fraud is now possible with genetic testing, for example, to
discover if you are eating what you were told you were being served in a restaurant or sold in a
grocery store. In one reported instance, high school students tested the sushi in a restaurant and
found the restaurant was using tilapia as a substitute for white tuna.26 This is clearly fraud, but
who is going to investigate? Should the state fraud statutes be used against restaurants and
grocery stores which can no longer simply defraud their customers with impunity? If so, law
enforcement will have to become educated on genomics and perhaps develop a specialized
genomic fraud squad with special training in order to identify these genomic misdemeanors.

3.3 Crop destruction by design

With the virtue of being able to feed the world with genetically modified crops, also
comes the dark side of the technology, as discussed, supra, 3.1. Due to the worldwide use of
genetically modified crops, the genomes are almost identical making this mono-culture crop
vulnerable to being completely destroyed by a fungus or other disease that happens to find the
weakness in the genome. Such an attack, either by Mother Nature or a designed disease, would
potentially destroy a large part of the world’s food crop for one or more seasons. For example,
through natural selection over the years, bananas have become a mono-culture around the world
in banana plantations. Currently, this fruit is at risk of extinction due to a fungus that is attacking
this monoculture of commercial banana plantations. The potential for attacks on mono-culture
crops could be a criminal opportunity.
In order to ensure against the possibility of entire mono-culture extinctions, the use of the
seed banks that have been built to ensure old seed stocks survive might become vital to re-
establishing crops. Private collections of seed banks could also become important, despite the
possibility of keeping the genome in a digital form.

3.4 Personalized DNA weapons

The rise of personalized medicine that is responsive to particular genetic markers and
types is one of the most important advances in cancer treatments. However, this precision can
also create vulnerabilities just as easily as it can create opportunities. Engineering a virus to
target individuals with that particularly genetic marker, might at first be used to target high level
officials in assassinations, but would soon become available for wider use for targeted killings of

26
See e.g., John Schwartz, Fish Tale Has DNA Hook: Students Find Bad Labels,
N.Y. TIMES (Aug. 21, 2008), http://www.nytimes.com/2008/08/22/science/22fish.html (reporting about high-
school students exposing the sushi restaurant for passing tilapia as white tuna).

7
domestic crimes. This would undoubtedly be of interest to the military, as well, and targeted
killings of the enemy would be a logical extension of this process.
The use of precision “biotechnological weapons” has been discussed as some of the most
frightening of all weapons. The use “direct integration” involves injecting DNA directing into
another human through the use of specialized bullets and guns. Once inside the body, the DNA
would be designed to infect the human to disable, kill, or change the person. Other uses might
include pheromones affecting certain genotypes that would alter behavior in ways that would not
be conducive to defending against an enemy. Surprising, these ideas have been part of the
discourse for more than a decade, but are now frighteningly close to possible.27 The Biological
Weapons Convention arguably would extent to these kinds of weapons, but the scope of the
definition in the Convention must be increasingly broadened.28

3.5 Identity theft for financial access

To suggest that the law has kept up with technology in digital finance would be wishful
thinking; however, applying existing law to reach the scope of these technologies has at least
begun. Mobile banking, bitcoin transactions with the new blockchain feature that can trace the
origin of bitcoin transactions are all digital systems that may in the near future be accessible
based on bio-identifiers. For example, the use of retina scanners and fingerprint access is already
commonly used even for unlocking individual smartphones. The possibility of using the unique
genetic signature of a person would ensure the uniqueness of that identifier and may one day be
used for financial transaction confirmations.
The Genetic Information Nondiscriminatory Act of 2008 (“GINA”)29 was created to
protect the privacy of individuals, finally making a federal statute which in part, replaced similar
state statutes passed over the previous ten years in all fifty states. This statute prohibited the use
of genetic information by employers against an employee or against an insured by an insurance
company, against discrimination in the case of employers and for pre-existing conditions in the
case of insurance companies. This may be remembered in the future as the first statute on which
later amendments were added to protect us from genetic identity theft, and genetic crimes by
protecting individual’s genome identifiers. This statute might also be amended in the future to
prevent the possession of another persons’ genome with intent to use it to harm them or to steal
from them. This statute could very well be the foundation statute of the age of biocrime and the
first statute to protection one’s genomic identifier.
In the future, the use of fingerprints, retinal scans or DNA tags could be used to ensure
privacy and security of financial accounts. The need to keep one’s DNA safe from being stolen
will be a new requirement to guard against financial theft and other privacy invasions. The fact
that “open source” DNA can be collected from discarded paper cups, cigarette butts, napkins and
a host of other sources, makes the task of keeping your DNA secure, daunting. The surreptitious
collection of DNA could be a new criminal industry, sold like stolen credit cards and ID cards.

27
111. Guo Ji-weo & Xue-sen Yang, Ultramicro, Nonlethal, and Reversible: Looking Ahead to Military
Biotechnology, 85 MIL. REV. 75 (2005) (citing David M. Mahvi, Michael J. Sheehy & Ning-Sun Yang, DNA Cancer
Vaccines: A Gene Gun Approach, 75 IMMUNOLOGY & CELL BIOLOGY 456, 459 (1997)).
28
See Victoria Sutton, Emerging Biotechnologies and the 1972 Biological Weapons Convention: Can it Keep Up with
the Biotechnology Revolution? Special Edition: New Technology, Old Law: Rethinking National Security,” 2 Tex.
A&M L.R. 695-718 (2015).
29
Pub.L. 110–233, 122 Stat. 881.

8
 3.6 Inserting drugs in crops
The ability to insert genes in crops such as tobacco, rice or bananas could also be used for
a bad cause, perhaps unleashing a deadly virus when the crop is distributed for human
consumption to a particular country, for example.

4.0 Stealing economic genetic trade secrets

In 2012, the first discovery of economic espionage30 in the theft of genetically modified
trade secret opened another page in the age of biocrime. Genetically modified experimental corn,
protected as a trade secret, was stolen for the benefit of a China crop development company
signaling a new kind of genomic crime. While economic espionage has been a federal crime
since 1996, it was only now that the theft of trade secrets was used to prosecute the theft of
genetically modified material.
In this case, the systematic stealing of experimental varieties of corn from experimental
fields in Iowa was an ongoing process by Mo Hailong and a group of five or more Chinese-
nationals, all searching the Iowa countryside for experimental corn varieties to literally pocket
and take or send back to China. Their goal was apparently to meet the growing food demand of
their country and reverse the trade imbalance of importation of 94% of their corn needs from the
United States.31 It would be logical to extend that objective to the theft of cotton, another crop
that China desperately wants increased growth in domestic production, which would reduce the
amount of cotton purchased from the United States. Other genetically modified crops may also
be on their shopping list, and more vigilance and better protections are needed to prevent
genomic thefts from any country, not just China, that mean millions of dollars in losses to the
companies which create them.
This is a growing area of concern in the biotechnology area, with recent convictions in
the U.S. demonstrate the reality of the threat of theft of intellectual property in genetics. This is a
biocrime that is only recently become more evident and will require further expertise and
perhaps specialized investigative squads among the tools of the Federal Bureau of Investigation
(FBI).

5.0 Attribution Problems

Biocrimes also come with the problem of attribution. Whether it is Mother Nature or
whether it is a criminal design of a biological agent, attribution requires good investigative
techniques combined with tools of scientific analysis that can identify both the genomics of the
agent, as well as connect the perpetrator with the crime. Both of these require new techniques in
the age of biocrime.
We have experienced attribution problems most apparent in the Amerithrax investigation.
After ten years of investigation with the top talents in the FBI, and ten years of scientific research
to map the genome of anthrax with the top scientists in this field; the conclusion was less than
conclusive. A single flask, labelled RMR-1029, was identified as the source of the anthrax based

30
18 USC §1831 (2016).
31
Ted Genoways, “Corn Wars”, New Republic (Aug. 15, 2015), available at:
https://newrepublic.com/article/122441/corn-wars (visited 4/7/2016).

9
 on both good scientific work as well as good investigative work. As remarkable as was that feat,
the fact that two hundred people had access to that flask, RMR-1029, was one evidentiary hurdle
that may have forever thwarted a jury from being able to find a perpetrator guilty beyond a
reasonable doubt.32
Better forensic genomic tools to connect the perpetrator with genomic crimes in this
attribution challenge are essential to address the new age of biocrimes.

6.0 Conclusion

With virtuous uses of new biotechnologies, inevitably malevolent uses, with the aid of
criminal minds will be certain. Utilizing these new exciting technologies for personal gain or
simply to do harm rather than good is a phenomenon for which we must prepare and expect. The
responsibility in developing these new technologies must also include the research necessary to
formulate ways to guard against the criminal, to develop forensic tools and to enforce and
prosecute the commission of these new biocrimes. New training for law enforcement into
specialized squads to address these new biocrimes will be necessary.
Yet, the biotechnologies that have increased our quality of life, and eliminated the
immediate fears of world starvation far outweigh any crime that we have seen thus far. But to be
complacent and assume we have dodged the bullet would be a mistake. Focus to address and
prepare for stopping these malevolent uses of increasingly available biotechnologies must be
ever in our sights as we continue to be an optimistic, yet vigilant, society.

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The potential suspect committed suicide before being arrested, so the attribution for the anthrax attacks in the
U.S. in 2001, remains unsatisfyingly not comletely resolved.

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