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Vaccine 'passports,' incentives raise fears over privacy and discrimination

Some claim passports are necessary to getting back to "normal;" others warn of encroachment on rights.

Published: March 31, 2021 11:50am

Updated: April 2, 2021 9:24am

Efforts to institute "vaccine passports" that identify those inoculated against COVID-19 are raising alarm about infringing on the civil liberties and privacy of Americans on the other side of the pandemic, while business campaigns to incentivize both employees and customers to get shots are raising some concerns about discrimination.

World leaders were calling for a vaccine for COVID-19 nearly at the outset of the pandemic in 2020, with health experts claiming that vaccinations were the only feasible path back toward normalcy and prosperity for the world. 

The development and rollout of the vaccines has coincided with growing demands for vaccinated individuals to be able to identify themselves when taking part in public life, with industry leaders and politicians proposing various systems to verify an individual's inoculation status quickly and reliably. 

Those demands have coalesced around what are being called "vaccine passports." In some areas such programs are moving forward rapidly

In New York State, for instance, Gov. Andrew Cuomo last week rolled out what he said was a first-in-the-nation "transformational technology" meant to identify individuals who have been injected with the coronavirus vaccine. 

Multiple businesses and industries, meanwhile, are offering perks for vaccinated individuals in an effort to incentivize as many Americans as possible to get the shot.

Concerns over privacy, data storage

Some commentators and experts are speaking out against the passport proposals, claiming they could pose a threat to the civil fabric of the United States due to privacy concerns and potentially as a significant number of people who forego the vaccine are increasingly excluded from public life. 

Albert Fox Cahn, the executive director of the Surveillance Technology Oversight Project, told Boston University's WBUR last month that a vaccine passport system could "create a really chilling implication for privacy going forward."

"You know, this is creating what could turn into a permanent layer of surveillance infrastructure on the scale of nothing we've seen since 9/11," he told the station.

He criticized "the idea that you have a government app that can track every place you go, that can tell whether or not you're going to the supermarket, or going to a church, or going to a mosque or going to any number of other crowded spaces.”

Ultimately it is not guaranteed that a vaccine passport system would be government-mandated. Robby Soave, an editor for the libertarian magazine Reason, noted the private sector may ultimately take up the mantle itself.

"In terms of the government, citizens should resist all efforts to make vaccine passports a required element of travel, public schooling, etc," he said. "But if private entities want to experiment with requiring customers and employees to be vaccinated, I don't think that's something the government should prohibit. In general, we need to move away from the idea that everything should be either mandated or banned."

Patrick Eddington, a civil liberties research fellow at the libertarian Cato Institute, said the risk for privacy violations are still present if private parties are administering the passport system.

"If we're looking at a potential privacy or civil liberties violation," he said, "it really comes in the form of data storage—electronic or paper—stored by businesses subject to potential national security applications." 

Eddington dismissed the likelihood of that threat, further arguing that the private sector will likely take a patchwork approach to passports, with some types of businesses requiring them and others not. 

"My thought is most businesses want to get back into business," he said. "They're probably not going to be nearly as concerned by this as many others are."

Jay Stanley, the senior policy analyst with the ACLU's Speech, Privacy, and Technology Project, said the group opposes "a vaccine passport that leads to our most vulnerable people getting further shut out of full participation in our society."

"We don't oppose in principle the idea of requiring proof of vaccination in certain contexts," Stanley said. "But the devil is in the details, and any proposal for 'vaccine passports' must not be exclusively digital, must be decentralized and open source, and must not allow for tracking or the creation of new databases with personal medical information. Not everyone has access to a smartphone, especially people from some of our most vulnerable communities."

"There is also real concern that the creation of vaccine credentials could lead to overuse, or have a chilling effect on immigrant communities and communities of color who are already subject to over-policing and surveillance," he argued further. "There are legitimate circumstances in which people can be asked for proof of vaccination, but right now not everyone can get vaccinated."

"That's precisely what herd immunity attempts to protect against: community spread to people whose medical conditions contraindicate a vaccine or don't have access." In a blog post on the subject, Stanley said the civil liberties organization would be "closely watching developments in this area."

Perks, bonuses for individuals who have been vaccinated

Apart from requiring an individual's proof of vaccination to access services, some businesses have been incentivizing the vaccine by promising extra perks to both consumers and employees who receive it. 

The donut chain Krispy Kreme, for instance, announced last month that it would offer a free donut every day through 2021 to anyone who presented a vaccine card at one of their establishments. Local businesses in states ranging from Minnesota to Wisconsin to Michigan to Massachusetts have announced discounts for patrons who can prove their vaccinations. 

The NBA's Miami Heat took incentives to the next level last month, announcing new "vaccinated fan sections" for less than 500 sports-goers. Most of those fans will be able to bypass security procedures such as "COVID-19 Detection Dogs" and will be seated in courtside sections of the stadium.

Employers nationwide, meanwhile, have been offering various perks to workers to obtain the vaccine, including paid time off, bonuses and other benefits. 

The legal ramifications of such efforts are unclear so far. Perhaps no medicine in human history has been as aggressively pushed as has the COVID-19 vaccine, with countless leaders at the local, state and national levels in both the private and public sectors urging staffers, underlings and coworkers to receive it. 

Those efforts, though well-meaning, could potentially run afoul of U.S. disability law, which protects both workers and customers with medical disabilities from discriminatory practices. The CDC notes that "because of age, health conditions, or other factors, some people should not get certain vaccines or should wait before getting them."

In February, a group of professional organizations wrote to Equal Employment Opportunity Commission Chair Charlotte Burrows asking for the commission to "quickly issue guidance clarifying the extent to which employers may offer employees incentives to vaccinate without running afoul of the Americans With Disabilities Act and other laws enforced by the EEOC."

Attorney Jonathan Mook told the Society for Human Resource Management last month that while "employer incentives may come into play in order to encourage employees voluntarily to take the time and make the effort to be vaccinated," nevertheless, "at the present time, there are a number of legal gray areas as to the legality of an employer providing incentives."

Doron Dorfman, an associate professor of law at Syracuse University, told Just the News that, as far as consumer-based incentives are concerned, the likelihood of a legitimate discrimination claim is slim.

"My sense is that it's not discriminatory [to offer incentives to consumers]," he said. "Giving some kind of a special bonus or special treatment for people who got the vaccine, it's not discriminatory against people with disabilities" because individuals have "no right to incentives" in the first place. 

Dorfman worried that "if we do see it as some kind of discrimination, then it will be used by people who object to vaccines who will manipulate it to their benefit." He argued that people attempted the same stunt with masks in the early days of the pandemic, claiming a disability in order to avoid wearing one. "This line of thinking can actually be used against people with disabilities," he said.

He acknowledged that "passports or requiring a vaccine for work, that's another issue."

According to the CDC, the U.S. had fully vaccinated about 17% of its population as of Friday; around a third of the population had received at least one dose. 

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