Washington

Taking the strain: agents took lab equipment from artist Steven Kurtz's home following his wife's death. Credit: D. HEUPEL/AP

An artist who uses live organisms and laboratory equipment in his performances is being scrutinized by federal officials who suspect he has broken bioweapons laws.

Federal prosecutors are deciding whether to file charges against Steven Kurtz, an art professor at the State University of New York at Buffalo, for possessing strains of bacteria, laboratory equipment, and several books on biowarfare. But Kurtz's friends and supporters say that the materials are part of his group's performance pieces.

Since 1987, 46-year-old Kurtz has been part of a Buffalo-based performance group, the Critical Art Ensemble, whose work offers political commentary on scientific topics. They often incorporate laboratory techniques into their shows, according to Nato Thompson, a curator at the Massachusetts Museum of Contemporary Art in Boston who has seen the group's work. “The lab experiment is the performance,” he says.

The current investigation began with the death of Kurtz's wife, Hope, on 11 May. Medical staff responding to an emergency call from Kurtz noticed some “materials that made them uneasy” in his home, according to Paul Moskal, a spokesman for the Federal Bureau of Investigation. Officers from the bureau searched the house and questioned Kurtz about materials found there.

Moskal declined to comment on what the search uncovered, but Claire Pentecost, a photographer at the Art Institute of Chicago and long-time friend of Kurtz, says that investigators carried off samples of Bacillus globigii, Serratia marcescens and a benign form of Escherichia coli. They also seized laboratory equipment, including a polymerase chain reaction (PCR) machine and books on biowarfare, she says. The books were part of the group's latest project, The Marching Plague, which simulates an anthrax attack as part of its critique of government germ-warfare research.

Analysis showed that the biological materials removed from the Kurtz home posed no threat, and an autopsy of Hope Kurtz revealed she had died of a heart attack. Authorities have nonetheless decided to bring a case against him before a grand jury; this will determine whether he can be prosecuted in court.

The US attorney's office in Buffalo declined to comment on the case, but a website that supports Kurtz's group says the case is being pursued under the Biological Weapons Anti-Terrorism Act of 1989. The act was amended under the USA Patriot Act of 2001 to allow the prosecution of “whoever knowingly possesses any biological agent, toxin, or delivery system”.

Jonathan Turley, a lawyer at George Washington University in Washington DC, says that he thinks prosecutors are unjustified in pursuing criminal charges. Turley defended Texas Tech University plague researcher Thomas Butler in his recent federal trial (see Nature 426, 593; 200310.1038/426593a). “The clear expectation of Congress was that the justice department would exercise a modicum of judgement,” he says. “This law is designed to deal with the likes of al-Qaeda, not Andy Warhol.”

Kurtz was due to appear before a grand jury in Buffalo on 15 June, when his supporters planned to rally in his defence.