The EU Digital Vaccine Passport as a Social Justice Issue: Problems, solutions, and questions
Kristin Bergtora Sandvik considers the EU's plans for a ‘digital green certificate’ from social justice perspective and argues we must continue to pay careful attention to its roll-out in the months to come.
March 17th, the EU presented plans for a ‘digital green certificate’ (DGC). The certificate will be in digital or paper format with a QR code, free of charge, in national languages and English; be safe and secure— and valid in all EU countries. Geographically and temporally limited, the objective is to “facilitate the safe free movement of citizens” within the EU during the pandemic. It should be noted that the certificate is explicitly not “a pre-condition to free movement, which is a fundamental right in the EU.” Emphasizing data minimization, the certificate contains information about name, date of birth, date of issuance, as well as ‘relevant information about vaccine/ test/recovery’ – and a unique identifier.
While the certificate can store test results, extra requirements of testing and quarantining requires a notification to the Commission. The timeline for launching the certificate is demanding: The EU Commission is to present a legal proposal which requires acceptance by the EU parliament and member states this spring; and the EU will then roll out a digital infrastructure in the summer. Member states must undertake logistical preparations to issue and verify certificates and amend their national health record systems. Work towards ensuring international recognition of EU certificates happens in collaboration with the WHO.
Contributing to the rapidly growing commentary on digital vaccine passports (here, here and here), this blogpost considers the EU DGC initiative from social justice perspective, broadly defined. The Certificate – with its shared digital infrastructure and standardizing impact on national health record systems – may become a short to medium term win for the EU, and enhance the Unions future pandemic preparedness long-term. Yet, there is a danger that the Certificate – in concert with the emerging ecosystem of national and commercial digital ‘passports’ – may skew, restrict or undermine access to opportunities, resources and basic freedoms, thus chipping away at the basic values of the European project.
From general objections to social justice implications
To begin, a brief inventory of the objections against digital passports is useful: While the tourism and hospitality industry and millions of Europeans applaud the plans, critics argue that vaccine passports are a faulty solution to a badly devised problem. Critics contend that vaccine passports will only be needed until herd immunity is achieved through vaccinations, and that vaccine passports themselves have serious repercussions for cyber security and for human rights. It has been pointed out that the introduction of such certificates also speaks to the long-term strategic ambitions of the digital ID industry- who see this as an investment for the future but are criticized for not being sufficiently attentive to risk – and government surveillance actors.There is a lot of concern about data protection, privacy and GDPR compliance –and some concern about vaccine passport forgery and attendant forms of crime. There is also significant scepticism about the ambition of constructing a digital infrastructure initiative spanning 27 different countries in a short period of time: Can the EU do it and do it well? As will be argued in this blog, even if the EU can create a trustworthy and legal digital system, it will have social justice implications.
Problem framings: centring mobility and digital solutions
In the context of Covid-19, in a year we have gone from seeing social distancing and handwashing, then masks, then vaccines as being the solutions to the spread of the pandemic. However, with vaccination under way, the focus on solutions has shifted in a way that is highly significant from a social justice perspective.
Digital vaccine passports are not (primarily) a way of managing infection rates but a strategy for reverting to a pre-pandemic state of mobility. At the start of the outbreak, in the Winter of 2020, within a few weeks, mobility went from being the solution to the financial and political challenges faced by the EU, to become the cause of the crisis facing the Union. While the certificate is presented as a solution to the impasse on free movement generated by the pandemic, the policy and regulatory framing of problems and solutions – as well as how this framing privilege the credibility and relevance of a whole new group of stakeholders – merit closer attention.
Efforts to mitigate the impact of COVID-19 are now channeled strongly towards a concern with problems of mobility, resulting in a problem-framing amenable to “technological solutions”. A common critique of new and/or experimental digital tools is that they are a ‘solution in need of a problem’. While there is generally good reason to caution against attributing inherently transformative qualities to technology and using terms such as ‘game changers’, the circumstances, the political entanglements and the commercial and popular traction of the certificate suggest that while the DGC is to be deployed ‘during the pandemic’, the end of the pandemic will not be the end of the certificate. We need to watch out for mission and function creeps – and who they affect and how.
Vaccinations and the DGC
An important underlying problem for the DGC is the disagreement about the primary purpose of a vaccine program – and how the push for a digital passport solution exacerbates these disagreements. This includes for example how the inadequate prioritization and roll-out of vaccine programs (such as in Germany) will shape access to the DGC; and the incentives created for jumping vaccine queues – or deliberately seek out contagion in lieu of vaccination.
While there is now agreement on having certificates, as observed by Angela Merkel, this does not cover “precisely how they should be used.” Different actors have distinct priorities: For the Union, the DGC is about reestablishing a fundamental freedom. For governments this concerns opening the economy. For individuals, to re-enter normal life. For public health experts this can be a way of reducing transmissions.
Once a digital vaccine passport scheme has been brought into life, there are problems of regulation that need to be solved. An important issue concerns what ‘immunity’ (from exposure or the vaccine) entitles individual to do –or not do. For example, should passports be granted to individuals who have tested positive and recovered from COVID-19 – or only to those vaccinated (with recognized vaccines)? Yet, the extent to which transmission can occur after recovery or vaccination is unknown. Hence, we will likely be faced with issues of differential or tiered immunity statuses based on who can spread the infection – and what type of affordances we grant to different ways of acquiring immunity. The timeline for when we are ‘during the pandemic’ thus becomes significantly more ambiguous: is this until we have reached a vaccine-induced herd immunity, until infections fall below a certain reproduction number or maybe forever, if regular vaccine schedules are required to contain the virus?
Included here is also a raft of technical questions such as: do you need one or two doses to get the certificate; which vaccines qualify (taken where;) what about medical (pregnancy, age) cases or religious objections and what about conscientious objector rules? (anywhere); and what about disqualification from vaccination programs based on age (low or high)?
This links to the question of mandatory vaccination programs. At the time of writing, the decision in Vavrřička and five other applications v. the Czech Republic (application no. 47621/13) by the European Court of justice is expected to be influential in determining the margin of appreciation for states and thus the scope of mandatory COIVD-19 vaccination in Europe under the ECHR – as well as under what conditions bundles of obligations can be tied to vaccination. While the DGC is not to become a ‘pre-condition to free movement’, a mandatory vaccination scheme will de facto become such a pre-condition in the context of the DGC.
Social justice issues
Importantly, strong connections are being made between access to vaccination and the DGC: Emphasizing the need to vaccinate first, not building “gateways to interoperability”, a Belgian member of the EU parliament suggested that a freedom of movement rights based on health status – in particular as long as everyone don’t have access to the vaccine – could be a “slippery slope” for fundamental rights and freedoms. A tentative list of issues includes the following:
The requirement for digital literacy persists: Although the proposed policy specifically notes the DGC will be free of charge and available on paper, access to connectivity, platforms and devices and attendant digital literacy will still be required.
The linkages between access to vaccination and access to the DGC are strong. In addition to challenges of geographical inequity emanating from the uneven distribution of vaccines between countries and region, attention must also be given to the unequal vaccine distribution to marginalized populations and its impact on the DGC distribution. In particular this involves individuals who are legally present in the EU but lack documentation due to historical conditions of exclusion and discrimination. For example with respect to Roma lacking birth-certificates, social security numbers and other documentation as well as access to health services –or homeless people and drug users who have ‘fallen’ out of public health registries and are difficult to locate and support through a multi-dose vaccination process. A third category are those not legally present such as failed asylum seekers, trafficking victims and ‘irregular’ migrants. These are groups who generally face significant difficulties in obtaining access to vaccination schemes and who are also hesitant to come forward to due to distrust and fear of the authorities.
The domestic usages of the DGC will proliferate. In the likely event that digital vaccine passports will have engender a raft of domestic usage, familiar problems of bias and profiling will arise with respect to who is likely to be stopped and checked for possessing and carrying a digital passport – by extension for proof that they are vaccinated and thus not a ‘threat’ to public health.
The DGC will further close-off Europe in the name of mobility. Finally, there is the issue of a DGC-requirement as a barrier for travel into the EU. In terms of pre-existing policy, cross-border travel (i.e the requirements for a Schengen visa) has previously not been made contingent on the health and vaccination status (though such requirements are globally common, historically and now, ranging from tuberculosis to negative HIV tests to a general denial of entry to aliens with ‘communicable diseases’). However, the unequal geographical distribution of the vaccine suggests that this will engender a further restriction of access to Europe through the adding of a public health criterion to the list of economy, national security etc.
Understanding implementation through the prism of social justice
In the months to come, we must continue to pay careful attention to the roll-out of the DGC and it’s underlying digital infrastructure Asking questions is imperative: How will it create pathways for resource allocation and prioritization? What are the risks of differential treatment and tiered forms of social citizenship emerging from national adaptions of the DGC? What types of DGC control regimes will emerge, and sanctions will be applied?
Kristin Bergtora Sandvik, Cand.jur UiO 2002, S.J.D Harvard Law School 2008, Research Professor in Humanitarian Studies, PRIO Professor of Sociology of Law, Department of Criminology and Sociology of Law, University of Oslo.