Skip navigation
The Habeas Citebook Ineffective Counsel - Header
× You have 2 more free articles available this month. Subscribe today.

Vaccine Passports Raise Privacy Issues and Create a Class of Undesirables

by David M. Reutter

The COVID-19 pandemic greatly impacted the liberty of citizens worldwide when it was at its zenith in 2020. It continues to have ramifications, and its next assault may be upon your right to privacy if vaccine passports become the norm.

The initial government response to the pandemic, on a world-wide scale, was to order the wearing of masks, to close churches and so-called non-essential businesses, and to mandate the citizenry into lockdown. The justification for these closures was that the COVID-19 virus was highly contagious and could only be controlled by everyone hunkering in place. Government officials also approved the streamlining of a new class of drugs to create a vaccine.

These moves had several legal and financial ramifications. In some cases, pastors were arrested for conducting religious services in churches. Many businesses went bankrupt as a result of their loss of revenue. Hundreds of thousands of people were put out of work. A federal mandate prohibited landlords and mortgage companies from evicting people for nonpayment.

The courts were confronted with challenges to local ordinances or executive orders that mandated these changes. In most every instance, the orders were upheld in the name of public health. We were, after all, in the midst of a pandemic that required these measures to control the virus or for people to maintain the status quo.

It would be easy to elaborate more upon all that was done in the name of public health and safety as the pandemic bloomed, but the focus of this article is to help the reader recognize the permanent changes that were wrought as a result of the pandemic and how they affect your rights. In the post-vaccine era, the goal of vaccinating the world has created a call for vaccine passports to verify vaccination status. As a result, we create two classes of persons: (1) the vaccinated and (2) those who are unvaccinated due to personal reasons or because the vaccine is counterintuitive due to other health concerns.

The push to create a vaccine for COVID-19 became intense and was a daily focus of news reports and governmental talking heads. This led to the fastest-ever produced vaccines (and if you’re willing to do a little digging, see what these fastest ever developed and approved vaccines have wrought). The FDA approved them for emergency use, and they have yet to be approved fully by the FDA.

In the rush to create a vaccine, the usual trial period and studies were waived. Most surprising about this emergency approval and the ongoing use of the vaccine and the boosters that have followed is that the COVID-19 vaccines are an mRNA class of drugs, which have never previously been approved for human use.

Once the vaccine was approved, there was a rush to vaccinate everyone. The term “herd immunity” became a constant refrain as we were told it was the beginning of the end of the COVID-19 infection problem. In other words, once the vast majority of people were vaccinated, life could return to normal. We were told the vaccine was 75-90% effective in preventing transmission of and contraction of the virus. News reports touted “experts” such as Dr. Anthony Fauci in telling us the vaccine was safe and that we should “trust in the science,” which is about the most anti-science statement there is. 

One feeling has been a constant during the pandemic and its aftermath: fear. Over a million people have allegedly died from COVID-19 complications. Confronted with media saturation of the daily or total death toll, people became fearful that they would contract the disease and become gravely ill or die. Thus, when vaccines became more readily available, enormous pressure was exerted by the government, news media, businesses, family members, associates, and neighbors to get in line and receive the vaccination shots. Booster shots soon followed.

A failure to be vaccinated renders one a pariah. Various governments have created a vaccine passport that lays out specific activities only the vaccinated can enjoy. In other words, the unvaccinated are prohibited from entry into the venue or from traveling. To enforce this, they have relied upon smartphone technology.

In the Philippines, Singapore, and Malaysia, proof of vaccination is required to dine at restaurants, enter malls, or visit hair salons. In Brunei, proof of double-dose vaccinations is required to enter places of worship, reported in January 2022. Attendance at social gatherings or to enter entertainment ventures is restricted to vaccinated persons only in some Australian states.

QR codes are used to easily pull up electronic certificates for a vaccinated person. The vaccination record varies, but the person’s name, date of birth, and sex is universally listed. Depending on the country, the record may contain a passport or government identification number. This may seem innocent enough, but these QR codes are connected to a database, which may contain more health or personal information or it may be connected to another database that contains this type of information. The leak of the vaccine certificate for Indonesian President Joko Widodo prompted concerns about the security of medical data.

Another troubling aspect is that when a QR code is scanned, it can create a record of your movement, activities, and whereabouts. This ability to track you should be especially concerning.

We are accustomed to being asked for verification of certain statuses. For instance, the law requires that a person be 21 or older to buy or consume alcohol. Thus, when we enter a bar, we don’t think twice when asked to verify our age. Some people argue this is equivalent to being asked to prove vaccination. The difference is that the police can’t call the bar and ask for a list of people who were on the premises the night before. In the age of QR codes verifying your vaccination status, providing such a list is a matter of point-and-click.

Australian police have already used QR code check-ins during criminal investigations. This is the next level from their existing ability to use cell tower information and cell phone location tracking to pinpoint a person’s whereabouts. Consider someone using a burner phone to maintain privacy — they would avoid digital tracking of their movement, but the moment they go somewhere that a vaccine passport is required, they just left a digital footprint.

This vaccine passport footprint has the tech sector salivating. Data is the new gold, the saying goes. It is estimated that the global biometrics market—bodily attributes digitized—will grow 15% annually, reaching nearly $105 billion by 2028.

Onfido, a British tech firm, envisions an EU-wide identity verification, or IDV, system for online gambling, telemedicine, car rentals, electronic voting, “and more.” A global biodata repository is being created by scientists in academe and the tech industry. Only the naive would believe these networks will not be connected, and then connected again to other databases that contain other personal information.

The American Civil Liberties Union warns against digital vaccine passports, urging the paper versions be used while vaccination is deemed necessary. “[D]igital credentials present a number of new potential problems, and we would oppose a vaccination credential system that does not meet three crucial criteria,” the ACLU said. First, such a system must not be exclusively digital, for it would increase inequality because “[m]any people don’t have smartphones, including disproportionate numbers from some of our most vulnerable communities, such as people who are low-income, have disabilities, or are homeless, as well as more than 40 percent of people over age 65.”

Next, it must be “decentralized and open source.” In “creating a digital vaccine passport, we could see a rush to impose a COVID credential system built on an architecture that is not good for transparency, privacy, or user control. That could lock us into a bad standard as other parties that need to issue credentials piggyback upon it to offer everything from age verification to health records to hunting licenses to shopping accounts, memberships, and web site logins.”

Finally, the system must “not allow for tracking or the creation of new databases,” the ACLU said. It noted that information could “be sold for commercial purposes or shared with law enforcement.”

Collecting location data to connect with a person’s single digital profile is useful to both law enforcement and businesses. In fact, it can serve the public good, but there is no bright line between benign and malign surveillance. Where it shows an infected person, such as those with positive COVID tests or HIV, failing to inform others with the need to know of their infection, prosecutors could use that evidence in criminal proceedings. It also could be used to assist in commerce.

“If you have walked by an auto dealership three times in the last few weeks, we send you a text advertising an auto loan,” a Chinese banking executive told author David Goldman, who detailed the comment in his 2020 book on modern China. “We wouldn’t be allowed to do that in the West.”

While such advertising tactics would raise the American public’s ire, that same public rarely knows how its government is using the vast amount of information it collects. Edward Snowden is in exile because he dared to expose the depths of surveillance the U.S. Government conducts on a daily basis.

Despite the threats to our privacy, proponents of vaccine passports will often argue they are a necessary evil. In an article for The Intercept, Judith Levine, admitted she held such views, but she was not proud of it. She said a friend wrote, “I’d rather hand over my personal info to some corporation than eat [in a restaurant] next to the unvaccinated.”

“Passports have everything to do with borders,” says Jenell Johnson, associate professor of rhetoric, politics, and culture at the University of Wisconsin-Madison. “Securing borders is all about fear. The action of fear is to restrict movement. The passport allows for movement in both physical and economic ways. It also immediately suggests belonging—the people who belong and people who don’t.”

In the case of vaccine passports, the clear message is that you don’t belong in society unless you are vaccinated. “It’s actually really straightforward. If you’ve got a vaccine pass, you can do everything,” said New Zealand Prime Minister Jacinda Ardern when heralding her country’s My Vaccine Pass as a key to the kingdom. “Basically, that’s it.”

Vaccine passports should be viewed with skepticism, for they can easily be used as regime control and a propaganda tool to separate and control the citizenry. This is a lesson learned from the Soviet Union’s use of internal passports early in the Twentieth Century.

In 1933, the Soviet Union put internal passports into effect. They were confined to major urban centers like Moscow and St. Petersburg, as well as border areas. In other words, the government focused on areas it wanted to control. When they first went into effect, over a million people had to leave Moscow because they lacked an internal passport, which was required to obtain employment or register children for school.

In his book The Soviet Passport: The History, Nature, and Uses of the Internal Passport in the USSR, Albert Baiburin quotes an internal party communique to detail responses about the new system by workers:

“‘It’s good that they’re bringing in the passport system. That’s how we will get rid of the criminals,’ said Yegorov, a worker at the Borets factory.

‘It’s important to work and not be a parasite. The Soviet authorities are right not to give passports to parasites and lazy swine.’ –Farm worker from the Moscow region.

‘Kharkov is a major industrial center, with a million-strong population. Here, people who are totally opposed to the building of socialism have made themselves a cozy little nest. Criminal elements with no creative talents have wormed their way into our institutions. The passport will reveal the true number of Soviet citizens.’ –White-collar worker from the ‘Daily Life and Labor’ cooperative.

‘It’s about time they introduce passports. It’s a great way to clean the dirt out of the capital.’ –Stadnick, worker from the ‘Hammer & Sickle’ factory.”

These comments contain emotional hostility towards others, and they classify certain people as being unworthy of living alongside everyone else. The failure to be vaccinated for COVID-19 is raising similar hostility.

In 2021, a friend of mine died of COVID-19. For reasons unknown, he objected to and refused to be vaccinated despite the fact his job put him in contact with people in the high-risk environment of prison. After learning of his death, I overheard another prisoner comment, “I’ll bet he’s wishing now that he’d taken the vaccine.” I’ve overheard others say that unvaccinated prisoners should be put in their own part of the prison or a prison separated from the vaccinated. The rhetoric towards the unvaccinated is, to say the least, uncharitable and antagonistic at times.

As prison is just a microcosm of society, these views must be magnified in general society. What many fail to consider is that the vaccine is not stopping transmission of the disease. Indeed, President Biden, fully vaccinated and boosted, has contracted COVID-19 multiple times already. Scientists concede the COVID-19 virus has evolved to survive, as viruses do. The Omicron variant infected everyone. It not only infected the vaccinated, it infected those who were thought to have immunity because they previously had contracted COVID-19.

When we consider these facts, are we justified in discriminating against person who are unvaccinated? As noted earlier, some decline vaccination because of personal medical issues the shots would complicate. Others, such as myself, choose to see how the vaccines affect others. After all, trusting the science means relying on empirical evidence, which is based, in normal cases, on long-term, repeated trials on animals and then humans.

Some European countries banned the AstraZeneca vaccine because of concerns it may be associated with dangerous blood clots. In March 2021, Johnson and Johnson destroyed around 15 million doses of its vaccine because of quality control issues where the J&J vaccine was contaminated with AstraZeneca ingredients. When things move fast, mistakes happen. We know these vaccines were created in a hurry under extreme political pressure with an underlying race for profit as a big motivator to be the first on the scene.

In January 2021, the World Health Organization issued a statement opposing a vaccine passport. “At the present time, do not introduce requirements of proof of vaccination or immunity for international travel as a condition of entry as there are still critical unknowns regarding the efficacy of vaccination in reducing transmission and limited availability of vaccines.”

In an article that appeared in Forbes, Joe Toscano exhibited how for reasons of the public good we have had detrimental impacts on portions of our society. “The War on Drugs decimated the black community. The War on Terror did catastrophic harm to Muslims in our nation. Many of the effects of these initiatives are still hurting these communities today—more than 20 and 40 years later, respectively.”

“Today, with the War on Disease, we’re facing immense increase in hate towards Asians, which you can be sure will not go away with the addition of a required [vaccine] passport. In fact, it is reasonable to assume this may actually increase the hate as the blame for enhanced surveillance is placed on the Asian community,” Toscano wrote.

The question here is: Are we justified in using vaccine passports to pressure the unvaccinated to become vaccinated? Whether you agree or disagree with that position, you should consider the legal and surveillance ramifications of vaccine passports, especially digital ones.

Once implemented, they will not be temporary. In fact, we can expect that they will not only become a permanent part of our societal life, they will be expanded into other areas once the networks are established. A basic premise of law, like viruses, is that it evolves. Once a court affirms the use of vaccine passports for public health and safety reasons, the precedent is set to expand the system for other “public good” purposes.  



As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login



Disciplinary Self-Help Litigation Manual - Side
Advertise here
Disciplinary Self-Help Litigation Manual - Side