Security issues in a world at war
Originally published in The Entheogen Review
Citation: Hanna J. "Pragmatic Paranoia? Security issues in a world at war; Part I". The Entheogen Review. Autumn 2001;X:3,81-85.
"The unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.."
-- The Federal Bureau of Investigation's definition of "terrorism."
Nightbloomers. In 1979 this Berkeley company run by Sam Pedro made its debut selling Trichocereus pachanoi--perfectly legal to do. They also provided ethnographic information about how this plant has been used as an entheogen by Peruvian cultures. In 1987 they were raided by California narcotics agents, their greenhouses were trashed, and thousands of pounds of living cacti were seized and destroyed. The charges were eventually dropped, but Sam Pedro was left awash with bills due to damages and attorney fees, that forced him to close his business (Boire in Gottlieb 1997; Ott 1996). Eventually Mr. Pedro opened a new related business, Rosetta, which provides information only and doesn't sell plants.
Herbal-Shaman. In the fall of 1998, this botanical vendor had a shipment of 100 kilos of Voacanga africana seeds (costing $1,500.00 wholesale) seized by the U.S. Customs Department. I suspect that the name of the addressee on the box, "Herbal-Shaman," piqued their curiosity. Customs found out more about this vendor easily enough, by accessing their web page on the Internet. Customs also found information about the plant at that web site, which stated that it contained the active chemicals "voacangine, ibogamine and other ibogoid alkaloids." Perhaps worried that some of these chemicals were scheduled, Customs contacted the DEA. The DEA seemed concerned, and Customs would not release the package. (It is worth pointing out that even if these seeds did contain ibogaine or some other scheduled compound, there are hundreds of plants that contain scheduled compounds that are not illegal, and nowhere is V. africana listed as a scheduled plant. I have not heard of anyone targeting sellers of Asiatic jasmine, which does contain small quantities of ibogaine.) The situation was clearly one of deliberate harassment without legal basis, and it eventually resolved with Customs releasing the seeds after nearly a year. Why did it take so long to get them back? The seeds went to the DEA for analysis to find out if they actually contained appreciable amounts of ibogaine, which they apparently did not. The seeds then went to some department of the USDA where they actually germinated some to verify the identity of the plant (Trenery 2001)!
The Peyote Foundation. On January 8th, 1999, several officers of the Pinal County Multi-Jurisdictional Narcotics Task Force used an arrest warrant for a negligent child support payment as an excuse to enter the property on which The Peyote Foundation was located on. The next day, without any search warrant being served, they raided the property and confiscated 11,323 peyote plants, as well as slashing the covers on the greenhouses and trashing the interior of the home at the Foundation. Three computers, all cash ($177.00), and cancelled checks were taken, as well as family photo albums and scrapbooks with newspaper articles concerning peyote and the Foundation's history. (The Foundation had previously suffered the confiscation and eventual return of 1,000 peyote plants at the hands of Pinal County authorities in the winter of 1995.) The plants taken from the 1999 raid were never returned, despite the fact that no charges were filed. In December of 2000, the folks who ran The Peyote Foundation were forced off of the property that they rented. The Pinal County authorities threatened to charge the landlord with money laundering and racketeering, due to his making money from renting the property to the Foundation, which according to the Pinal County authorities was guilty of possessing, selling, or transferring an illegal drug to "non-Native American guests." Never mind that no charges had ever been filed related to the second act of government-instigated theft (and the peyote had been returned following the first instance of such theft). The intimidated landlord, however, bowed to the Pinal County authorities threats. Officers of The Peyote Foundation moved off the land, and the organization no longer operates. All of this occurred despite the fact that Arizona law is very clear that the bona fide religious use of peyote is legal for all races.
"Virtually all of their business records and a substantial quantity of their inventory were seized, including all their computers and computer data, all paper records, a vehicle, various items of inventory, postage stamps, scales, the blank business checkbooks, and many more items. None of the products that this company sold are known to be specifically proscribed by law; they operated a legal business."
It doesn't matter that a business or organization may be operating in a completely legal manner. In each of the cases mentioned above, no laws appear to have been broken. In some of the cases there was never even an attempt to file charges. The government can harass, invade, threaten, and steal, and unless one has substantial resources to fight for their rights (including a large amount of soluble assets and good legal advice), the businesses and organizations subject to such terrorism can't do much about it. One DEA representative has actually stated that the DEA would not hesitate to arrest "anyone who we thought needed to be, even if we knew for a fact ahead of time that no prosecutions would follow" (Trout 2001). Due to this situation, there are a few things that might be considered by a business that caters to those interested in growing legal botanicals and performing legal research with novel chemicals, in order to try to avoid an attack by domestic terrorists.
Keep a Low Profile. This can mean not having a web page (although this might be a difficult option if one wants to retain a competitive edge). Rather than listing the name of your business or organization on any mail--should your operation's name contain words that might arouse suspicion by Customs' agents or mail carriers--merely list the initials of your business or organization. "Legal High Botanicals" is sure to raise more eyebrows than "L.H.B." will. (Indeed, a name that implies consumption should be avoided entirely in the first place.) Businesses that might want to consider such a strategy include those whose name contains any of the following words or variations on these words (all of which appear in currently operating organizations): ayahuasca, bong, botany, Cannabis, dope, drug, entheobotany, entheogen, ethnobotany, hemp, herb/herbal, high, magic/magical, marijuana, mind, mushroom, peyote, Psilocybe, psychedelic, sacred, shaman, 'shrooms, trip, weed, and similar words. If suspicion is aroused and your organization does have a web page, then any government policing force is just a click away from confirming their belief that they may have some reason to look into your mail more closely.
Know Your Risk Level. With regard to selling botanical products (not counting those that are specifically illegal, of course), it strikes me that the safest thing is to sell live plants and seeds. If the plant is the "drug" material, selling the seeds may be safer; if the seeds are the "drug" material, selling the live plants may be safer. Plants and seeds should be noted as being sold "for ornamental use only." Using this phrase is better than saying that the plants are "not sold for consumption," since by including the word "consumption" you have-- as a seller--tipped your hat with regard to knowledge that some people might want to consume the plants. However, you could safely state that some of the plants you sell are poisonous. Selling dried plant material carries the next real level of risk, since it clearly is not intended for horticultural use. Selling extracts is more risky than this. Finally, selling pure compounds extracted from plants (or synthesized) may be the most risky. These risk levels are, of course, subject to some degree of debate--depending on what specifically is being sold, and in what manner it is being sold. But as a general rule, they probably hold true--especially in those cases where the legal botanical contains an illegal substance. Live plants and seeds absolutely should be sold with cultivation advice (or such advice should be provided on a web page), except in the odd situation where it is only legal to eat the seeds, such as with Papaver somniferum (poppy seeds). Cultivation advice should also be nixed for seeds that are legal as seeds, which grow into plants that may be specifically scheduled or considered de facto illegal (due to statements in the Federal Register), such as Erythroxylum coca, Tabernanthe iboga, Catha edulis, and psilocybian mushroom spores. (Note that psilocybian mushroom spores are only themselves specifically illegal in California and Georgia.) As far as botanicals go, none should be sold with or have web page information--or even links--related to their chemistry, pharmacology, ethnographic use, or preparation for consumption. In the early 1990s, when there was only a handful of specialty botanical suppliers and no general Internet access, I could understand why a company may have felt that it was necessary to include such information. Today, with the massive amount of data available on the Internet, as well as the proliferation of small press publications dedicated to this topic, there is no reason to include this sort of information. Any such inclusion can only be argued--should it come down to that--that the seller was aware the consumer intended to use the products for a drug effect. Indeed, including any links to drug sites, or referencing publications such as ER, Pharmacotheon, and/or PIHKAL is a bad idea, and there is no reason to do so. Most people have some access to the Internet, and a search engine can provide them with links to a lot of what they need to know. This is not only a concern from the perspective of specifically scheduled compounds that may occur in legal plants, but it is also a concern from the perspective of actions that the FDA might take on any plant that doesn't have their GRAS status (generally recognized as safe). The FDA has in the past simply made statements in the Federal Register of "bans" on particular products or plants (such as GHB and Catha edulis), which have resulted in them being yanked from sale in most instances, and those who did not comply were hassled and in some cases prosecuted. You can quote law to a cop all you want, but it won't stop him from trashing your home, possibly beating you, and/or sticking you in jail.
Consider Your Image. There is an idea that if materials are offered only as non-consumables, that they will be considered legal. Indeed, it is always better to offer botanicals for ornamental use, as voucher specimens, or for incense purposes (for example), than to explicitly state anything related to their consumption. (It should be noted, however, that the "standardized" Salvia divinorum products that are sold as incense might easily be seen as an "unauthorized drug" by the FDA--why else would the active drug ingredient be listed by mg amount?) The letter of the law may be on the side of someone selling pure compounds as "research chemicals," and most big chemical supply companies-- such as Sigma/Aldrich and Lancaster--specifically state in their terms of purchase that the buyer must agree that the product is not being purchased for consumption (or even resale, that might result in consumption). While the ornamental/non-consumptive approach is the way to go, it is clear that--should a bust go down--one of the things that the prosecutor will be trying to prove is that the seller knew the products sold were being purchased for consumption. How can they do this? Well, if the only place that one advertises their botanicals or research chemicals is in High Times, Trip, or The Entheogen Review, this could be brought into evidence to show that the seller did know that their buyer might be using the product for consumption. There have been "paraphernalia" sellers who have been busted, or coerced into turning over their customer mailing lists, due to their advertisements in High Times. Based on where they were advertising, claims that their pipes were sold "for tobacco only" didn't fly. It is worth pointing out that concern over the marketing of legal herbs as illegal drug substitutes resulted in a Federal Trade Commission decision that states that the producer of "Herbal Ecstacy"--an Ephedra-containing product marketed as a replacement for MDMA--cannot have their advertisements appear "in publications whose readers younger than twenty-one (21) years of age constitute fifty percent (50%) or more of the total readership" (FTC File No. 962-3210). Clearly it is a good idea to advertise in a wide variety of places, so that it can't be shown that the only place you advertise is in "drug" publications. On the topic of age, placing an age restriction such as "customers must be at least 18 years old to place an order" could also be construed as an admission that the products are being sold for consumption, regardless of any disclaimers. Traditionally, age restrictions are placed on drug items such as tobacco and alcohol; why would a person reasonably have to reach a certain age to have a legitimate interest in gardening? Of course, if customers need to sign some sort of release form in order to purchase your products, then it does make sense that they would need to be a adult in order to legally be held accountable.
"...[E]ven if a plant is not scheduled, it can now be considered illegal based on the intended use promoted by the seller."
Know the Analog Laws. The case mentioned above with the Voacanga seeds that were seized is an interesting one. To my knowledge, there has never been a conviction made based on the Analog Act wherein a non-scheduled plant or animal that naturally produces a chemical that is "substantially similar" to an illegal chemical has been determined to be illegal. (The closest a case has come to this was when a married couple was busted for toad venom. It was threatened that the prosecutor would argue that the 5-MeO-DMT that the Bufo alvarius toad created was an analogue of the scheduled drug bufotenine. The defendants' attorney reasonably responded that the Analog Act was passed to protect against "designer drugs" that are created in an attempt to skirt the laws that schedule specific substances, and that no plant or animal is creating these compounds for that purpose (Vogel 1994)! In the end, the defendants pleaded "no contest," (as they were also being charged with possession of LSD, morphine, and Cannabis), and hence no legal precedent was set in this case related to the Analog Act.) With regard to the Herbal-Shaman situation, since the seeds were eventually returned, the authorities clearly didn't feel that there was a substantial case against the vendor. Still, this was before the FDA published their notice in the Federal Register regarding product sales, and it may be possible within the current climate to argue that the vendor of such seeds is selling them as an alternative to the scheduled drug ibogaine. Although I've said it before, it bears repeating: it is a bad idea to include chemical, pharmacological, or ethnographic data about consumptive use along with or in any way connected to the business that is selling the botanical product. For an important interpretation of the Analog Act, I highly recommend reading Issue No. 9, (pp. 85-86) of The Entheogen Law Reporter (Boire 1995; see www.specmind.com).
Don't Advertise Unnecessarily. Minimize packaging that has the name and address of your business on it. The people who have already bought your product know where they got it from. Even if you operate in a careful manner, and set up your business by all of the rules, this won't stop the cops from knocking down your door when some stupid kid has "overdosed" on the GHB, Datura, 2C-T-7, salvinorin A, etc. that you are selling and his or her parents find the package that the product came in with your company's return address on it. I recall the story of Borders Books nixing their distribution deal for Jim Hogshire's 'zine Pills-A-Go-Go, when a parent whose kid had overdosed found a copy of this in his bedroom, and they called Borders to complain. Clearly this isn't as bad as it could be for the person who sold whatever product the kid ODed on!
"Any broken law can be used as an excuse to get at you, as exemplified by the arrest warrant served for a late child support payment that got the cops on the property at The Peyote Foundation."
Shut up. If you are in a business that is selling products as non-consumables, don't discuss the consumption of your products with anyone for any reason. This may seem like a no-brainer, but you would be surprised at how many conversations I have had about consuming non-consumable products with the owners of different businesses that are selling such products. There is no reason at all to jeopardize your business by having such discussions with anyone.
Hide Records. This protects you and it protects your customers. There are a number of businesses that claim to destroy all business records after an order is shipped. If they actually do this, great. But most people running a mail-order business (especially one with a web presence) keep some sort of customer records. It is standard business procedure to keep an "in house" mailing list. One of the best stories I heard was when the Arizona DEA sent a subpoena to Ronin Publishing, demanding a list of all of their Arizona customers who had purchased Cannabis grow books, and Ronin responded that they were unable to cooperate, because they didn't keep records related to what people specifically purchased. I have no reason to believe that Ronin was being dishonest about this, but they provided the exact right answer. At the least, customers' contact information should be kept encrypted. Hell, access to anything on a business computer should be password-protected and/or encrypted these days. [Note: ER keeps its mailing list encrypted, and destroys all correspondence after transcription. -- David Aardvark]
If all of the above suggestions seem to be too paranoid for someone who is running a completely legal business--they probably are. There are now hundreds of companies that sell specialty botanicals and dozens that sell research compounds of some sort. The fact is that most of these companies will not run into any problems. But why take the chance? Those who feel as though fear isn't a reasonable motivating factor might wish to consider that in the light of the most recent raid mentioned in this article, several companies selling chemicals and/or botanicals have decided to close their doors. Even if one takes all of the precautions mentioned in this article, there is no guarantee that there won't be a knock on the door someday. Nevertheless, appropriate harm reduction steps can't hurt.
In Part II of this article, I will present the case for "pragmatic paranoia" from the point of view of a customer of specialty botanical companies. We must remain even more vigilant against domestic terrorism than we are against international terrorism; the fact is, it happens more often.
[continue to Pragmatic Paranoia? Part II]