April 13, 2021
The lines are being drawn between those who support and oppose some version of a vaccine passport. At the Canadian Civil Liberties Association, we have flashed red and yellow lights at any effort by a Canadian government to mandate public disclosure of private health care information. But that does not mean that we simply oppose the measure without debate. Instead, we have a job to educate the public about their rights and freedoms, in addition to advocating against unconstitutional laws. When reasonable people can reasonably disagree about the clear “public good” at hand, heated debate is inevitable. When it takes place after a year of sacrifice, isolation, economic distress for some, and relative privilege for others, Bring on the vaccine passport, says one camp it’s got the potential to get ugly. But any good debate requires a factual underpinning, so in that spirit, CCLA offers the following Vaccine passport FAQ.
Bring on the vaccine passport, says one campThose favour mandatory vaccine passports say that everything that can be done to potentially reduce COVID19 who infection, should be done. If we wear masks to keep others safe, why wouldn’t we similarly be willing to demonstrate our vaccination status? It’s been a year of extraordinary legal orders to control and monitor human behaviour, ranging from contact tracing apps, heat-mapping gathering spots, snitch lines for “covidiot” reporting and a wide range of recommendations and legal restrictions on activities. Some of these have arguably been necessary and proportionate, others not so much, and disagreement remains as to which is which.
Vaccine passports do more harm than good, says anotherThose against vaccine passports point out that proof of vaccination does not equal immunity, and they warn of discrimination and privacy invasion. The proposed passports have an explicit goal of making private decisions about our health coercively public. Just as some communities and groups of people—Black, Indigenous, newcomers, poor, elderly—have been disproportionately impacted by the virus, so may they be particularly impacted by this very public and dispersed version of surveillance as systemic racism may influence choices of service providers and others about who to demand “proof” from, and who to deny access, particularly in the absence of a strict legal regime governing their use. For those with medical or religious grounds for being unable to get vaccinated, risks of discrimination based on who or what they are raise obvious and significant rights concerns. For those on the “no” side of the debate, vaccine passports are in fact a prescription for public harm.
What is a vaccine passport?Theoretically (because this is a new idea), a vaccine passport provides proof that you’ve been immunized against a contagious infection. It’s something you carry, in either paper or digital form, and that you may be required to show to authorized parties on request in order to access a service or enter a venue. Although the terms are sometimes used interchangeably, a vaccine passport is similar but slightly different than an “immunity passport” which would include information about past COVID-19 infections, on the theory that those who were infected and have recovered have some immunity from re-infection.
What is the science behind the idea?
The idea of a passport is premised in part on theory that those who are immunized or who have had and recovered from the virus are less likely to get COVID-19 again, and less likely to infect others. The science to support these suppositions remains unsettled, however.
Individuals who have recovered from COVID-19: Studies suggest that most people who recover have some protection themselves against the virus; one peer-reviewed study found evidence of protection up to 8 months post-infection. Another study with more than 20,000 health care workers in the United Kingdom found that 6600 had had a previous infection, and only 44 contracted it again. A similar study in the US with 3000 Marine recruits found that of the 190 participants who had contracted and recovered from the virus, 19 were re-infected (important note: these latter two studies have not yet been peer reviewed). It does seem as though there is some immunity for some period of time after having COVID-19, but it is not clear how long that immunity lasts, or, since reinfection is possible, whether it is reasonable to assume someone who has had the virus will not pass it to others in future. This suggests that evidence for efficacy of an immunity passport that treats individuals who have had COVID as safe is lacking.
Individuals who have been vaccinated: Clinical trials that led to approval of the vaccines were designed to determine if they effectively prevented serious disease or death, not transmission. To be clear, evidence shows they are very effective at preventing serious disease or death. However, the WorldHealth Organization (WHO) has advised, as recently as February 2021, against using a vaccination passport for international travel, for now, because:
– It’s unknown how long immunity lasts from any of the current COVID-19 vaccines for any of the currently known COVID variants;
– The necessity and/or timing for booster doses is unknown;
– It’s unknown whether vaccination offers protection against asymptomatic infection.
The WHO’s concerns are instructive, as it’s often assumed that international travel is the most uncontroversial use case for a vaccination passport. WHO will update their guidance in 3 months.
What is the precedent?
There are a few “almost similar” precedents that apply in particular contexts. The most commonly cited is the yellow paper card created by the World Health Organization that travelers must carry and show when entering some countries to demonstrate they have been vaccinated against yellow fever. Currently yellow fever is the only disease mentioned in the International Health Regulations (to which Canada is a signatory) for which countries can require proof of vaccination for international travelers.
There are some Canadian provinces (Ontario, New Brunswick and BC) in which schools require proof of vaccination for children for contagious ordangerous diseases including measles, mumps, rubella (the MMR vaccine) and diphtheria, tetanus, and whooping cough (the DTaP vaccine). In all cases,there are options for parents to opt out of providing such proof based on religious grounds or conscientious objections. Neither of these is quite the same as a vaccination passport as currently proposed, to the extent that such a passport would ostensibly be required across a wide range of contexts, where risks and benefits varied, and subject to interpretation not by regulated institutional actors (a border agency, a school board) but by a wide range of private and public sector actors (everyone from a shopkeeper to a concert ticket-taker to a cab driver or transit operator, potentially). In other words, the intervention would not be targeted, specific, and auditable, but pervasive, variable, and diffuse.
Why require a vaccine passport?
The argument for such a document is that it will facilitate a faster, safer return to a pre-COVID lifestyle by providing a means to identify people as “safe” to participate in public life by virtue of either a past infection or vaccination that has given them antibodies against COVID-19. Suggested uses range from resuming international travel without requiring quarantines or testing regimes pre/post arrival, to re-opening large-scale gatherings like sporting events or concerts, to participation in everyday life, including visiting a restaurant, movie theatre, gym, or store. The implicit presumption is that people will be hesitant to fully resume a pre-pandemic level of activity without some reassurance of safety, and such hesitancy will hamper economic recovery unless there is a tool to mitigate the perceived risk. The corresponding assumption is that knowing others around us have been vaccinated will contribute meaningfully to our own feelings of safety.
Why not?There are a variety of reasons why the concept of a vaccination passport is a troubling one. First, the science doesn’t support their utility. But beyond that, even if they were perfectly effective, they raise significant risks to rights and freedoms including:
Privacy: allowing private entities to collect and use personal health information about us is invasive. Tying the ability to participate in public life with a ubiquitous or persistent form of surveillance (“show us proof you have made a socially acceptable choice about your health”) is a diminishment of the level of freedom we expect in a democracy, particularly when weighed against the questionable efficacy of the passport to reliably indicate an inability to transmit the virus. If the passport is digital or has a digital version, additional issues of technical privacy, security, and access arise.
Mobility: Canadians have experienced unprecedented restrictions on moving around within Canada, from province to province, during the pandemic. A provincial/territorial patchwork of vaccination proof tokens or apps would make the problem worse.
Equality: the choice to be vaccinated is not open to all. There are some people with pre-existing medical conditions or disabilities where vaccination would be counter-indicated, and it is unclear how many people that affects because the vaccines were generally (or primarily) only tested for emergency authorization on healthy adults. People who live with persistent illness or disability are among those who most need human rights protections to ensure equal treatment. Even if the passport simply indicates “medically exempt”, that categorization may affect how individuals are treated (even if such differential treatment is technically prohibited). There are other equality concerns too. Not all members of our society are at equal risk or have equal means to navigate the pandemic while maintaining their health, safety, and income. Front line workers in service and retail are often women, newcomers, racialized, and/or financially insecure, and a vaccination passport regime that predicates participation in the workplace or other activities on proof of vaccination will disproportionately impact those individuals who have little social or political power to resist. Socially sorting people based on personal decisions about their health, which they are legally and ethically entitled to make, runs the risk of creating different levels of freedom for different “categories” of people, a risk that is likely to intersect with other systemic inequalities and affect some groups more than others.
Liberty: policies that facilitate vaccination status as a precondition to full participation in public life run the risk of rendering a voluntary vaccination regime de facto mandatory, via diffuse coercive impacts.
What are some current initiatives for a digital version of a vaccine passport, and what would be the benefits and risks of making a vaccine passport digital?
There are already a number of initiatives underway to create some version of a vaccination passport, either building on existing tools or starting from scratch. Locally, the Ontario government is working on one. Canada’s Health Minister, Patty Hajdu, met with the health ministers of other G7 countries on March 31, 2021 to discuss the possibility of a coordinated approach to vaccine passports, while stressing that Canada would only consider using such a tool if it is based on “reliable scientific evidence” and noting that the decision to issue such a passport would be led by provinces and territories.
Internationally, the WHO is working on a Smart Vaccination Certificate, pulling together a consortium of experts to focus on software-neutral specifications,standards, and a trust framework. Rather than create an app, they will be vetting apps created by others and creating a list of those that adhere to their standards for security, authentication, privacy and data exchange.
IATA (The International Air Traffic Association) is working on a Travel Pass Initiative, a digital platform they pitch as “a global and standardized solution tovalidate and authenticate all country regulations regarding COVID-19 passenger requirements.”
The European Union has proposed a “Digital Green Certificate” for use within Europe. Israel also has a “Green Pass” that can be used to access gyms, hotels, and travel to limited locations.
The risks of making a vaccination passport digital are similar to those of any digital tool that collects and shares sensitive personal information with potentially consequential impacts on people. All the privacy and other rights-based concerns identified above continue to apply regardless of whether the passport is paper, plastic or digital, but going digital adds complexity to the concerns due to the potential for data collection, combination, and breach.
Concerns range from ensuring the right technical privacy protections. Questions are multiple: what data is collected and used? Where does it come from? Where does the data live–your device or a central server? How is it transferred to a requestor? Authenticated? Updated? Secured? Is it used to simply display a credential (much like flashing a paper certificate or ID card) or scanned and recorded, and does the scan connect to a personal identifier accessible to the requestor? The right data governance framework will also impact the way the tool works in the world: is the credential tied to a central
digital identifier? Is that identifier–such as a health card number–shared or kept private after it’s used to authenticate the user and vaccination status? How is that authenticated? Who certifies the authentication for external requestors? What kinds of data linkages are created and what linkages are made possible that may be undesirable? Will there be risk scores/AI-driven analysis as part of a system? There are more, but that’s enough to make the point. Is it governments, a private sector vendor, or a collaboration that creates the tool, and which of those stakeholders has access to data collected on the app? At the same time, while going digital ups the ante in terms of complication, it may still be desirable for some users because of convenience andflexibility. For example, it would likely have the capacity to be updated quickly and relatively easily, or serve other public health goals, such as reminding people when they’re due for a booster.
What would be the legal basis for requiring the use of a vaccine passport?
There isn’t one yet, and there would need to be. A mandate for requiring an individual to display a vaccine passport could be created in a similar way to the masking requirements many provinces or territories have enacted. In Ontario, for example, we have a regulation (546/20) under the Reopening
Ontario (A Flexible Response to COVID-19) Act, 2020 that mandates masks indoors. Any legislation would of course have to be constitutional, which is an appropriately high and fundamental bar.
At an international level, for international travel, the Review Committee on the Functioning of the International Health Regulations (2005) During the COVID-19 Response might make recommendations on how to document safe traveler status, which possibly could result in the amendment of the IHR which eventually, if passed, would affect the 196 countries signatory to it.
It is also possible, although undesirable, that non-regulated uses of vaccination passport tools would arise in sites such as workplaces, concert venues, sporting arenas, or other settings where there is private incentive to either verify safety or at least, be seen to be trying to do so. In such cases, the legality would require close examination within specific jurisdictions and with attention to a range of relevant statues, including but not limited to privacy laws, health and safety laws, labour laws, and human rights legislation.
Governments around the world are considering using vaccination passports, but the science supporting their use (or not) is not yet there. The idea that Canada might require proof of health status to access public or private services domestically is actually a radical one. Radical doesn’t mean bad, or good, but it does mean that serious consideration on ethical, moral, social, health, and legal grounds needs to be given before moving forward. We shouldn’t be having an “of course” moment about this kind of intervention. And it’s easy to miss that fact, because we’ve been dealing with so many restrictions, in a time of so much fear and uncertainty, that we’ve been slowly acculturating to the idea that the end justifies the means when it comes to the pandemic. Sometimes it does. Sometimes it doesn’t. We need to step outside of our own fear, and demand government leaders step outside of theirs, and subject every intervention, vaccine passports included, to a rigorous analysis grounded in science, in necessity, and in proportionality. With this, as with every policy decision and technical intervention we make to facilitate public safety during this pandemic, we still need to think, up front, about what we want our country to look like now, and in the future.
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