After the 2001 attacks on the U.S. homeland, the government introduced a variety of new measures to prevent additional terrorist attacks. During a debate about these measures, I asked the head of the American Civil Liberties Union if she approved of any of the new protections. She responded with a simple “no,” but then asked to amend her statement: She could live with thickening the doors that separate the pilots from the rest of the plane, but surely no more.
Similarly, most times when new public-health-supporting technologies are introduced, human rights advocates seek to block them, arguing that they violate privacy, might be used to discriminate, and so on. Rather than seeking strong oversight and accountability to ensure that these new tools—which have very great human, social, and economic benefits—will be properly utilized, these advocates argue that the new technology should be banned. Individual rights luddites currently have in their sights vaccine passports (and immunity passports), even though these passports could enable scores of millions of people to leave their depressing quarantines, to go to work, to attend school, and to be socially active again, all of which would help revive the economy and reduce social tensions.
Vaccine passports can be issued to those who have the required injections (or have had the coronavirus). Some states also provide those who have had the shots with a lapel label that reads “I have been vaccinated,” similar to the stickers that voters are issued, in order to encourage other people to become vaccinated, to help society reach the vaccination threshold required for herd immunity.
The most often-cited argument against vaccine passports is that they will be used to discriminate. Duke University professor of law and philosophy Nita Farahany wrote in the Washington Post about this concern. She wrote, “The risk is that a system of passports would lead employers and others to discriminate against people who lack them—and that their value would produce perverse incentives (to contract the virus to get a job, for example). We should resist the seemingly intuitive rush to give preference to vaccinated people.” Similarly, the New York Times reported that Michele Goodwin, a University of California, Irvine law professor and director of the Center for Biotechnology and Global Health Policy, claimed that “Protecting public health has historically been used as a proxy for discrimination. That is the real concern—the potential to use these apps as proxies for keeping certain people away and out.”
Court rulings and ethical deliberations, however, show quite readily that not all discrimination is illegal or unethical. Indeed, the trouble lies with the term “discrimination,” because it evokes all kinds of social injustices. “Differentiation” would be a better term. Some differentiations are not discriminatory. Thus. the courts have long recognized that employers are quite free to “discriminate” against people who do not have the skills that jobs truly require. For example, a synagogue can legally and ethically require its rabbi to be Jewish. Rental Car companies may “discriminate” against those who do not have driver’s licenses. For all those facilities that serve the public—especially those that require close contact and/or being indoors—being able to differentiate between workers who are able to work and those who are highly vulnerable and might infect their customers, is a highly legitimate differentiation.
Indeed, OSHA allows employers to legally mandate that their employees receive flu vaccines (as long as employers allow for religious and medical exemptions as required by federal anti-discrimination laws).
Not only would there be no loss in jobs, but there would be a considerable gain, as the passports would allow for the reopening of the economy. People would again be able to visit relatives in nursing homes, and people who are dying would be able to be surrounded by their vaccinated loved ones.
Moreover, unlike most forms of discrimination, which often last for generations (if they are overcome at all), vaccine differentiations will be rather temporary. Those who are not yet vaccinated will soon be vaccinated and have passports of their own. And, the differentiation will exert some pressure on those who refuse to be vaccinated, as they will be unable to reap the benefits of the passports unless they reconsider their position. This pressure would help to speed up the rise of the level of immunization to the essential level of herd immunity.
Before I point to the other issues raised by individual rights luddites, I should note that the vaccine passports need to be treated appropriately. Although the new vaccines are surprisingly effective, much more so than those we use to curb the flu, they still leave all those who receive them with a 5% or so probability that they will be infected by the coronavirus and they may be carriers (though the evidence so far suggests that this is a low risk). Hence, those who employ vaccinated people will still need to insist that they wear masks and observe other public health precautions. Also, paper passports might be easy to falsify. Hence, measures need to be put in place so that these documents can be authenticated, most likely by the use of apps. This is sure to raise privacy concerns, which I turn to next.
For the vaccine passports to be validated, one will need to draw on a system similar to the one used to validate Social Security cards, a federal system. It makes no sense to have each state run its own version of the needed database, because this means that people could not use their vaccine documents in other states or travel from state to state without the need to quarantine. One may say that, instead of having a federal system, we should link the state systems, but, of course, that would amount, in effect, to a federal system.
Such a federal system raises concerns, because individual rights advocates fear that it may be abused. This is a valid concern. However, the response should not be to forgo the passports, but to institute safeguards to ensure that the collected data are not abused. So far, the Social Security data verification system has held quite well. Information about who got vaccinated should be relatively easy to protect, because it should be deemed to be medical information. Since the passage of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), medical information has been treated as particularly sensitive information and has been granted more protection by law than any other personal information. And there is only one piece of health information to protect as part of the vaccine passports system, as the passports should not include any information other than whether the holder has been injected.
In short, vaccine passports offer great personal and social benefits. The risks they pose are rather limited and quite manageable. Individual rights advocates should rightfully favor accountability and oversight; however, they should not stand in the way of the implementation of vaccine passports.
Amitai Etzioni is a University Professor and professor of international affairs at The George Washington University. He is the author of The Limits of Privacy and Privacy in a Cyber Age.