Arpit Goyal [*]
Digital vaccine passports consist of vaccine records of a person, including name, birth date etc., which can be accessed by scanning the QR code mentioned on it. There’s still no universal format for these passports. It may contain different information depending on the issuing authority, e.g., the Excelsior Pass Plus issued by IBM in collaboration with New York state, also includes information like where and when the person is getting vaccinated.
As the Covid-19 pandemic has drastically affected the world’s economy and most countries face recession, countries are desperate to resume international trade and travel. It can be foreseen that a vaccine passport may become a necessary condition for travel, but before that happens, it is imperative to remove all the flaws in the technology. In this article, the author will discuss the various administration problems which the countries may face in adoption of the technology and analyze the legal aspect of its application.
The EU has removed the condition of quarantine and testing if the travellers have vaccine passports with them. This administrative decision lacks rationale as firstly, it is based on the assumption that vaccine makes people immune to the disease and prevents the spreading; however, WHO has reported that vaccine doesn’t contain the spread. It only makes the body immune to the disease.
Secondly, the efficiency of the vaccine varies according to the mutant of the virus. The studies have shown that Pfizer and Astra Zeneca are less efficient for the Delta variant compared to the Alpha variant, so it is possible that a person may have taken the vaccine required for the passport but has been affected by such a mutant against which the particular vaccine is not effective which will ultimately increase the chances of spread of the disease.
Another administrative problem in the vaccine passport is uniformity. It took around fifty years to set up a uniform global passport system, and it took ten years alone to decide whether fingerprint or face biometric should be there on the passport. Creating a consistent vaccine passport system that is acceptable globally will require a lot of resources and time.
Violates Article 21
Violation of ‘Right to travel abroad’
In the case of Satish Chandra Verma v. UOI, the Supreme Court of India held that the right to travel abroad is part of the right to life and personal liberty under Article 21. It also stated that this right is not merely imaginary and is only subjected to fair, reasonable and just restrictions. If vaccine passports are made necessary for international travel, then it will violate this right due to the following factors:
According to a study conducted by Statista, only 48.16% of the world population owns smartphones, and only 59.5% of the world population have internet access. Suppose the digital passport is made a necessary requirement for international travel or access to public places. In that case, people who don’t have access to smartphones or internet services will face exclusion and discrimination. The problem of the digital divide also creates the problem of making the passport. In a country like India, which faced 109 internet shutdowns alone in 2020, it is challenging to maintain a digital record of vaccination drive. The administrator has to first authenticate the person's identity, create a unique identity of the CO-WIN platform, and then update the vaccination status. Without access to the internet, this process can be easily halted.
Unequal distribution of vaccine
According to a study conducted by Reuters, many poor countries will not have access to any vaccine till late 2024. Many countries are facing the problem of availability and affordability. Oxfam reported that rich countries with only 13% of the world population had purchased the majority of supplies of five leading vaccines. The second problem faced by poor nations is affordability. The price of approved vaccines ranges from $6-$74/dose, which these countries can’t afford considering their population and economic position—even developed and developing countries are not in a better position. According to an EIU’s research, India and China, which are a powerhouse of production of vaccines, will not get sufficiently vaccinated until late 2022. Till now, only 45% of Americans have been fully vaccinated.
This problem doesn’t end with vaccinating the people because several vaccines are not even approved by WHO and are not considered valid for vaccine passports. E.g the WHO has not approved COVAXIN yet, and the EU has denied adding it to the approved vaccine list required for travel there. Therefore, all the people with COVAXIN won’t be eligible to get a vaccine passport and will be denied from travelling to 27 countries, restricting their right to travel unreasonably.
Violation of ‘Right to Privacy’
To check whether Digital Vaccine Passport violates the Right to Privacy or not, the pertinent test to apply here is ‘Test of Proportionality’ given by the Supreme Court in the case of Justice KS Puttaswamy (Retd.) v. UOI.
Legitimate State Aim
As per this prong, the collection of data must be to fulfil any legitimate state aim. Now, countries claim that the objective behind introducing this scheme is to ease international and domestic travel and boost up the economy, but the problem arises due to the exclusion of certain people from this scheme. As mentioned earlier, due to the digital divide and unequal distribution of vaccines, many people will be excluded, and the said fundamental rights will get breached.
This means that there should be a rational nexus between the objectives of the act and the means to achieve them. Digital Vaccine Passport can never fulfil this condition because to effectively function; it has to collect health information of people which is private and sensitive. All the collected information has to be stored in some centralized storage system which will put people's personal information at risk.
This means that there should be no equally efficient way possible to fulfil the state’s aim. This requirement is also not fulfilled because there are other ways countries can ease international travel like negative test reports, recovery certificates, etc.
Under this measure, the measures taken by the state should not have a disproportionate effect on the rights of people. Digital Vaccine Passport fails to fulfil this requirement because, in most countries, there is no law to regulate people's personal data, so mission creep can easily occur. For e.g., Electronic Health Standards, 2016 state that in certain national priority activities, including communicable disease, ‘sensitive personal information’ of a patient can be revealed to an appropriate authority as mandated by law without the patient’s consent. Further, since the original idea behind the QR code was to track someone’s location, there is a possibility that the authorities may use the vaccine passport to track the location of people.
WHO released a paper that has advised countries not to use vaccination proof for international or domestic travel as the efficiency of vaccines is still disputed, and limited access to vaccines will affect some people unfairly. India has also criticized vaccine passport at G7, citing the less coverage of vaccination in developing countries. The problem is not only limited to its legal aspect but also extends to its safety and security. It has been earlier reported that a person with little programming knowledge can easily decode a QR code and create a new one. Also, walk-throughs are readily available on the internet, explaining how to create a valid QR code. In fact, a programmer forged NY’s passport system in just 11 minutes.
However, with more developed countries promoting it, it may become a new norm, but before that, it should be ensured that all the flaws mentioned above are removed.
[*] Arpit Goyal is a second-year student at National Law University Jodhpur (India).