Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Isabela Baghdady
Isabela Baghdady is a freshman in the College of Arts and Sciences at the University of Pennsylvania with plans to study Political Science and History.
Over a year into the COVID-19 pandemic, the increasing availability of vaccines has offered a glimmer of hope for a return to the “normalcy” of pre-COVID times. With over 86 million Americans fully vaccinated, the Biden administration has voiced hope that by summer time, there will be a welcome reprieve from the virus as well as the grief, social distancing, and uncertainty that has come with it .
However, the return to normal will not be without its challenges. In recent months, there has been increasing debate surrounding how to safely allow for vaccinated citizens to re-enter social spaces such as restaurants and movie theaters, as well as schools and universities. As a result, “vaccine passports”—that is, digital or paper proof of vaccination—are becoming increasingly popular avenues for private businesses to reopen while also assuring the safety of their employees .
While vaccine passports appear to be an effective means of loosening restrictions for vaccinated citizens, they pose many challenges and uncertainties—from privacy risks, to fraud concerns, to possible socioeconomic discrimination. As the government and private companies struggle to reconcile these issues, the timeline for vaccine passports stretches longer and longer.
What Are Vaccine Passports?
Since the advent of the pandemic, vaccine passports have been considered a possible avenue for assuring safe international travel as well as reopening private businesses. Most plans for vaccine passports imagine a digital smartphone application that serves as vaccine “credentials” and can be used to enter public spaces. Ideally, Americans without smartphones would be able to print out the certificate and present it as proof of vaccination .
Currently a number of countries, such as Israel, have already established systems of vaccine passports. In addition, the European Union, China, and South Korea are constructing plans for different versions of vaccine passports .
In the U.S., the Biden administration has been wary of implementing federal policies regarding COVID-19 vaccinations in an attempt to avoid excessive government oversight over citizens’ individual freedoms . The administration has already stated that it will not establish a federal vaccine mandate nor will it require vaccine passports when they come into effect. By leaving these decisions up to the private sector, the federal government can avoid accusations of forced vaccination or coercion .
As stated by White House Press Secretary Jen Psaki, there will be “no centralized universal federal vaccinations database, and no federal mandate requiring everyone to obtain a single vaccination credential...We want to encourage an open marketplace with a variety of private sector companies and nonprofit coalitions developing solutions" .
Thus, while the Biden administration has worked with certain private companies to discuss the safety and privacy concerns that come with a passport system, the work of creating the passport system itself has largely been left to the states as well as the private sector. New York has already tested out IBM’s Excelsior app, just one of the many recently created passport systems. As of March, the Biden administration reported that roughly 17 distinct plans were underway for different systems of vaccine credentials .
Experts seek to allow these different platforms to interact and operate in tandem in order to form a standardized system. "The vision is one set of secure digital credentials where the border guard at Heathrow is able to read the same credentials as the usher at Madison Square Garden without compromising citizen privacy,” stated Jenn Markey of the security firm Entrust .
The Dark Side of Vaccine Passports: Privacy, Fraud, and More
Despite the social and economic benefits of vaccine passports in theory, many have voiced concerns about the implications of their implementation in the real world.
With the widespread variability of vaccine passport plans—many of them created by private companies—the questions of standardized security procedures as well as the dangers of putting one’s information in the hands of “third-party apps” are cause for concern .
Personal privacy issues are not the only obstacle vaccine credentials face. The rise of fraudulent vaccine passports—a venture that is already increasing in popularity—presents another challenge to the legitimacy of the new potential policy. Currently, fake vaccine passports are being advertised on the “dark web” for the price of peanuts . The growing severity of the issue prompted 45 attorneys to urge that companies such as Twitter, eBay, and Shopify work to avert the further spread of false information online .
Finally, the multitude of different vaccine passport systems and processes across different companies and states risks fragmented chaos. Governors Ron DeSantis of Florida and Greg Abbott of Texas have already established executive orders that make a vaccine credential system impossible . In addition, the passports may exacerbate existing inequities in vaccine distribution. Because America’s most socially vulnerable counties already have a disproportionately low vaccine rate, implementing vaccine passport requirements may further marginalize underprivileged populations . Other critics have voiced concerns that vaccine passports could cause social divisions that would only empower anti-vaccination movements .
“If you have vaccine inequalities by ethnicity, by race, and also by social deprivation, and you add vaccine passports for basic social activities onto that, you begin to get vaccine apartheid,” said behavioral scientist Stephen Reicher .
These criticisms suggest that if a vaccine passport system is to be established, a degree of federal oversight will be necessary for a streamlined process that safeguards individual rights . However, whether or not the passports come to fruition, federal and state governments as well as private companies will have a long road ahead of them.
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
1. “See How the Vaccine Rollout is Going in Your County and State.” New York Times. April 7, 2021. nytimes.com/interactive/2020/us/covid-19-vaccine-doses.html.
2. Diamond, Dan, et al. “‘Vaccine passports’ are on the way, but developing them won’t be easy.” The Washington Post. March 28, 2021. washingtonpost.com/health/2021/03/28/vaccine-passports-for-work/.
3. “The Reality of Vaccine Passports.” New York Times. April 7, 2021. nytimes.com/2021/04/07/opinion/the-argument-vaccine-passports.html.
4. Kelly, Samantha Murphy. “Vaccine passport apps are about to be everywhere. It could get complicated.” CNN. April 13, 2021. cnn.com/2021/04/13/tech/vaccine-passport-apps-options/index.html.
5. Hauck, Grace. “Yes, some Americans may be required to get the COVID vaccine but not by the federal government.” USA Today. December 7, 2021. usatoday.com/story/news/nation/2020/12/05/covid-vaccine-required-government-employers/3797885001/.
6. Bacchi, Umberto. “Booming market for fake COVID-19 vaccine passports spark alarm.” Reuters. April 8, 2021. reuters.com/article/health-coronavirus-vaccine-passports/booming-market-for-fake-covid-19-vaccine-passports-sparks-alarm-idUSL8N2M05AB.
7. Gold, Ashley and Caitlin Owens. “Americans will likely have to navigate a maze of vaccine ‘passports.’” April 15, 2021. axios.com/vaccine-passports-republicans-economy-coronavirus-8fb97580-90e7-4456-b993-71382526ab5b.html.
8. Serhan, Yasmeen. “The Futility of Vaccine Passports.” The Atlantic. April 7, 2021. https://www.theatlantic.com/international/archive/2021/04/vaccine-passports-dont-solve-our-pandemic-problems/618521/.
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