Proof of Vaccination and Vaccine Passports— Reasonable Requirement or Invasion of Privacy?

By Stephanie Deskins. 

Call for COVID-19 Vaccine Passports

As the pandemic rages on, lawmakers across the country are desperate to reopen their communities and their economies. New York State introduced the digital “Excelsior Pass” in March, allowing individuals to regain access to popular venues after proving they received a COVID-19 vaccine. Other states like Hawaii that have been hard hit by reduced tourism are similarly developing app-based vaccine passports. 

The Biden administration caused national uproar after announcing plans to create a national vaccine passport.  Florida Governor Ron DeSantis stated he would use an “executive function” to block any vaccine passport system in his state.  Two Ohio state legislators opposed to vaccine passports plan to introduce legislation that preempts vaccine passports in Ohio. In light of these and other concerns, the Biden administration insisted that any vaccine passport would be developed by the private sector and that the federal government will not mandate a uniform vaccination credential.

There are many other inherent problems with vaccine passports. Arguably, the logistics of vaccine passports may hamper any hope by the travel industry to reopen the global economy. New York’s vaccine passport allowed users to provide the date of their latest negative antigen test, which has been heavily criticized for unreliable results. An app-based vaccine passport also disadvantages lower income individuals that may not be able to afford a smartphone. Additionally, in the United States, lower income populations and minorities are disproportionately unvaccinated. Others are concerned about the effect future COVID-19 variants will have on vaccines and whether future boosters will be needed. However, critics of vaccine passports mainly focus on concerns over privacy.

Required Immunizations Before COVID-19

Requiring proof of immunizations is nothing new. Most, if not all, states have requirements that students entering public school must show proof of their immunizations or submit a request for exemption. Many universities, like Arizona State University, require proof of immunizations for new students. Further, some professions require proof of immunizations and annual screening and testing for other medical conditions. 

Before COVID-19, an individual could provide their immunization proof through “paper, ink, [and] a pediatrician’s illegible handwriting.” Is it really surprising that the very idea of digital or centralized vaccine passports has spurned backlash? Even the ACLU, frequently in tension with conservative lawmakers, has expressed concerns over privacy and called for any proof of vaccination to be decentralized and paper-based.

Still, many argue that a century old Supreme Court case could provide the legal precedent for vaccine passports. The Supreme Court previously held that states may impose a fine on individuals that refuse vaccinations. In the 1905 case Jacobson v. Massachusetts, the nation’s highest court acknowledged that individual liberty is not an absolute right “wholly free from restraint” and that some limitations on individual liberty are necessary for the common good. The Supreme Court acknowledged that states did not have the power to vaccinate individuals by physical force and that any vaccination-related laws promoting the common good had to be reasonable. 

HIPAA Concerns

Vaccine passport opponents also claim that the passports would violate the Health Insurance Portability and Accountability Act (“HIPAA”). However, HIPAA only prevents healthcare professionals, hospitals, and health insurance companies from sharing information with unauthorized parties. HIPAA would not apply or protect an individual sharing their own health information with third parties. Similarly, HIPAA does not prevent a private company, like an airline or other business, from requiring proof of a COVID-19 vaccine. While there may be other specific state laws that protect medical information, vaccine passports would not violate HIPAA.  

Vaccine Passports and Expectations of Privacy Moving Forward

Experts argue that privacy expectations have shifted due to the pandemic—the reasonable person now expects less privacy with respect to COVID-related personal information. Indeed, many Americans seemingly volunteered that personal information, proudly sharing photos of their vaccination cards on social media to the dismay of privacy experts. After more than a year into the COVID-19 pandemic, many view vaccines, vaccine cards, and vaccine passports as a reasonable way to return to some degree of normalcy. However, that “normalcy” may be changed for the foreseeable future.

As indicated by the “no shirt, no shoes, no service” signs on many businesses, private businesses may generally choose to refuse service to customers. Therefore, it likely is not unreasonable for a private business to refuse service to an individual that refuses to provide proof of a COVID-19 vaccine, and may even be wise to permit proof through an app-based program. For many Americans, app-based programs are a way of life, enabling everything from mobile checkout at grocery stores to digital boarding passes for flights.

Vaccine passports could provide a quick and convenient way for many to quickly provide proof of vaccination. Businesses are also typically free to place conditions on use of their services. To combat inequality and privacy concerns, any vaccination requirement should be sufficiently fulfilled by either a digital vaccine passport or by the showing of a paper vaccination card. Such flexibility would balance the interests of those who reject a centralized digital vaccine program with the interests of those who would enjoy its convenience.

Any proof of COVID-19 vaccination requirement is likely a reasonable and temporary measure. Years from now when the pandemic is hopefully long gone, businesses will likely no longer require proof of a COVID-19 vaccine. Proof of vaccination is a step in the right direction to restore normalcy, but between the loss of privacy and questions of accessibility, it is a step Americans are reasonably hesitant to take.

"Syringe and Vaccine" by NIAID is licensed under CC BY 2.0

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By Stephanie Deskins

J.D. Candidate 2021

Stephanie Deskins is a third-year law student, Staff Writer, and Sustainability Law Research Fellow from Bremen, Ohio. She received her B.A. in Philosophy and her B.S. in Political Science from Arizona State University. In her free time, she enjoys spending time with her five dogs, cheering on her Ohio State Buckeyes, and volunteering as a Girl Scout leader. She hopes to practice Family Law and Estate Planning.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.