So, are vaccine passports legal? In a word, yes. They are legal if the various governments want them to be. But are they ethical? That’s another story.
The idea of health-related travel documents is not new. The World Health Organization (WHO created the International Certificate of Vaccination or Prophylaxis (ICVP), known as the Carte Jaune or Yellow Card, for those coming from or traveling through areas infected by yellow fever to arrest global transmission of the diseases. It’s been around since 1933. In Europe, health passes were adopted following outbreaks of the Black Death in the 14th century.
Domestic iterations were prevalent in the US, as well. In the 1800s, as cholera and yellow fever ransacked the county, health certificates facilitated travel through disease-prone areas, including US-occupied Cuba. In the early 1900s, Macon, Georgia, passed an ordinance requiring Black servants to show they were disease-free to qualify for a mandatory license or “badge,” which some compared to “dog tags.”
Some issues generated by those passports, licenses, or certificates, as they were variously called, resurrect themselves now:
- the selective use and availability
- verification of the identity of the passport-holder
- authentication of the certifying agency.
But given the digital dimension of the proposed passport, other issues surface as well.
We should keep in mind that there are two very different uses for the passports: facilitating international travel and tourism and encouraging domestic activity. The propriety of each use should be evaluated separately. Programs instituted by individual states, like New York’s domestic Excelsior program, would have no bearing on international traffic. By contrast, Israel, the “Vacci-nation” proudly announced that its “green pass” (easily downloadable from the Ministry of Health website through information generated by one’s health plan) which will be required domestically and has also been accepted by Cyprus and Greece as a travel document – thereby filling both functions. The international travel portion means no requirement to produce negative COVID tests on arrival at one’s chosen destination or spend half one’s vacation in quarantine. This is welcome news to countries dependent on tourism and citizens who’ve endured draconian lockdowns for the better part of a year. But that hasn’t stopped El-Al airlines from upping the ante, requiring, in addition to the passport, negative PCR tests for some flights. So, what’s the point of the passports if additional proof of disease-free status is necessary?
The Hack
International use for tourism highlights the first of several concerns: the integrity of the documents. Right from the get-go, two families journeying from New York secured forged negative tests and proudly boarded an aircraft bound for Israel. Luckily, no one aboard the plane became ill, but all the passengers were compelled to spend at least a week in a quarantine hotel on arrival.
We also must be mindful that anonymous traders are selling fake vaccination certificates and hacked passports on the Dark Net.” for as little as $150.
"We do negative Covid tests, for travelers abroad, for getting a job, etc. Buy two negative tests and get the third for free!"
Covid-19: Vaccines and vaccine passports being sold on darknet
Further complicating the situation is that the production of digitized passports being pursued by several companies, each with its own encryption technology and standards. A lack of an international consensus on approved vaccines and privacy standards for digital passports increases the likelihood of “bad actors” and undetected hacking. Various groups, including the British Royal Society and the WHO’s Smart Vaccination Certificate Working Group, have been mobilized to address these standardization issues. It’s too soon to assess their effectiveness.
Domestic Use
Not to be outdone, the US boasts the Vaccination Credential Initiative, a coalition of tech companies endeavoring to standardize vaccination record data tracking and reduce the “confusing array” of efforts underway to create credentials and address outstanding medical issues like the duration of immunity or the efficacy against mutant variants. As I write, no less than twelve digital initiatives are underway in the US to produce the digital elixir that will send us on our path to domestic normalcy. Frankly, this robust cooperation between natural competitors makes me nervous. Perhaps there is a profit motive involved? If so, I wonder who will end up with the tab.
Along with legal issues regarding digitalized passports trespassing on privacy rights are social justice concerns - not all eligible persons have the smartphones from which one downloads the app. The solution offered is a paper product that can be printed from one’s computer. (As to what happens if you don’t have a computer, no one mentions that possibility.)
More significantly, the passport's predicate is vaccination -- and some do not have equal access to that resource. The Black community is notoriously under-vaccinated, as is the Latinx. Whether this is because they are vaccine-hesitant, have unequal access, or are targets of the organized anti-vax movement is a matter of discussion. The simple fact is that a passport, which opens the door to all manners of domestic resources, would be unavailable to those who cannot access the vaccine. [1]
Many suggest that the passport program will stimulate vaccine acceptance and act as a counter-foil to the anti-vax message. Others, wary of this possibility, like our youngest member of Congress, Madison Cawthorn, raise the specter of the Holocaust to ward off possible pro-vaccine repercussions of passporting:
"Proposals like these smack of 1940s Nazi Germany. We must make every effort to keep America from becoming a 'show your papers' society.'”
And what about the “vaccine-cannots,” e.g., the children who have no FDA-approved vaccines or those allergic to vaccine ingredients? Do stadiums and restaurants need to put aside separate sections to accommodate these groups? Will parents agree to be separated from their kids?
Ethics
Notwithstanding the ethical dilemmas associated with privacy, structural inequality, and “the left behind,” ethicist Ezekiel Emmanuel and Govid Persard proclaim the passport passes ethical muster. They invoke a legal paradigm: the requirement to use the least restrictive alternative to secure public health. But this methodology doesn’t cut it as far as an ethical evaluation is concerned. The evaluation of public health measures fostering economic buoyancy is not included in determining what is allowable legally. The Ezekiel-Persard analysis picks and chooses their analytical method to support their favored conclusion -- bolstered by their own idiosyncratic rationale.
Indeed, their own paradigm: “the ethics of COVID-19 immunity licenses can be assessed with respect to three fundamental ethical values: the maximization of benefit; priority to the least advantaged; and treating people equally” doesn’t fit the facts in the field. Not everyone has equal access to vaccines, the benefit mostly flows to those wealthy enough to afford restaurants, sports visits, and trips abroad, and the disease prevention benefit can be obtained by social distancing and masking. To be fair, their article was written pre-vaccine, but has their thinking changed?
Other issues regarding ethically of the passports have not even been identified, let alone addressed. For one, the limits of the program. If we allow the passport for COVID, shouldn’t we begin issuing health passports to all vaccine-friendly diseases that society deems vital to contain? Flu, perhaps? Or re-boostering for measles in adults?
Additionally, as ethicist Yuval Cherlow reminds us, we must provide provision for one socially precious segment of society: the group who volunteered for new vaccines' clinical trials. These thousands of persons, randomly assigned to test or control groups, are “blinded” to their vaccine status. Many are in an extended study of the vaccine’s efficacy. They will have to forego the passports, along with the access to the entertainment and socialization, and travel that they enable for months. While most who sign on to these trials voluntarily accept the risk of vaccine-related injury, they don’t give up their right to socialize, which now, ex post facto – will be denied to them. Future “guinea pigs” can be informed of the ramifications of their participation and perhaps compensated for this additional hardship – but what of those who’ve signed on months ago? How do we accommodate that group?
Immunity passports to COVID-19 “paradise” sounded like a God-send. A quick, easy way to assure the disease isn’t spread. Not foolproof, but cheap. But as they say, you get what you pay for.
[1] I say “cannot” because those who “will not” be vaccinated exercise their autonomy and choice, and choice involves consequences.
