April 14, 2021

Immunity Passports Explained

Patrick McKnight

The exigencies of the global Covid-19 pandemic continue to generate unprecedented legal issues. In a world increasingly connected by technology, public policy can struggle to balance public health with personal privacy. Technology-assisted contact tracing programs, such as smartphone applications which attempt to monitor and track proximity to others, are one relatively well-known example.

Creative, well-intentioned proposals to combat the virus seem to appear on a nearly daily basis. Because public health and personal privacy can become particularly emotional issues, it can become difficult to thoughtfully and objectively weigh the merits and potential problems. This article will analyze the proposals for “Immunity Passports” and examine some of the potential legal and practical problems associated with implementation.

What are Immunity Passports?

Some countries, most notably China, have already introduced some version of “Immunity Passports” as part of their reopening plans. Hungary and Iceland recently joined the list. Chile and Estonia have tested similar programs. The United Kingdom has reportedly seriously explored immunity passport proposals. Analogous plans have been discussed by experts in the United States, Europe, and several more countries in Asia.

Immunity passports are essentially a credential given to a person after they have recovered from Covid-19 and tested negative. Presumably it could also contain information about whether a person is vaccinated. These credentials would be digitized on an electronic device, such as a smartphone app with QR code.

The logic behind the idea is people with immunity should have greater freedom to travel because they pose less of a risk to the general population. This could potentially help jumpstart reopening plans and economic growth after months of restrictions on business operations.

Not surprisingly, tech companies around the world are pushing for some form of digital immunity passport as part of the “new normal” in the post-Covid world. Depending on the scope of implementation, the potential market for such technology could be enormous. Some experts in both medicine and law have raised several problems with the implementation of immunity passports.

Potential Legal Problems

The freedom to travel was one of the first casualties of the pandemic. An immunity passport is qualitatively different than travel restrictions and stay at home orders. Because immunity passports are typically predicated on government access to sensitive medical information, the opportunity for violation of privacy laws is extraordinary. HIPAA and ADA compliance are two obvious concerns for any immunity passport proposal. Indeed, the term “passport” itself may be misleading because the main use of these credentials for most citizens could be for domestic travel.

Second, to the extent Covid-19 seems to have disproportionately impacted people of color and lower-income communities, an immunity passport could exacerbate problems for these groups. Lower-income communities may have less access to the antibody testing required for an immunity passport. For economic reasons, these communities may also lack the luxury of being able to work from home. Critics have already coined the term the “antibody elite” to describe the privileged position of those members of society permitted to resume normal activities with their immunity passport in-hand.

Third, immunity passports would create yet another new legal precedent that will outlive the pandemic. Covid-19 will not last forever, but many of the precedents and policies established during this crisis will endure. China has already announced it plans to continue at least some form of its immunity passport after the pandemic ends.

Practical Concerns

At this point we still lack robust scientific data on immunity to Covid-19. According to the CDC, experts still don’t know exactly how long a person with antibodies will remain protected. The CDC also points out that the accuracy of the antibody tests remains less than 100% certain. These concerns notwithstanding, available data suggests not enough people have antibodies to produce a robust impact on the economy, even if they were to resume broader social activity.

If immunity passports are to be temporary, it is worth considering how to clearly define what constitutes the “end of the pandemic.” It could conceivably take decades for North America to completely and totally eradicate the virus. Eradication of other widespread diseases like polio and smallpox took decades of coordinated effort. Some experts define “the end” of a pandemic as a return to normal seasonal baselines. But this definition is equally problematic because Covid-19 is a novel strain without any established seasonal baseline to reference.

Conclusion

Technology has an important role to play in mitigating the spread of Covid-19. Many aspects of the “new normal” will be able to accommodate both reasonable public health precautions and individual autonomy. Of all the problems presented by immunity passports, the legal questions may be the most worrisome. Whereas the practical problems discussed above are eminently solvable, the potential for widespread privacy issues and civil liberties violations are likely intractable. 

Patrick McKnight

Associate, Klehr Harrison

Patrick McKnight is an Associate in the Litigation Department of Klehr Harrison in Philadelphia, Pennsylvania. He is a member of the firm’s Covid-19 Task Force, and the Data, Privacy, and Cybersecurity practice group.