Immunity Passports: The Silver Bullet to a Broken Economy? LAWS428 Word count: 2914 Describe and discuss some of the challenges facing those charged with regulating immunity passports, and the strategies they might employ to address them: 1. Introduction COVID-19 has sparked a global crisis.1 Caused by a strain of coronavirus called severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)2, COVID-19 is characterised as a global pandemic.3 As of August 31st, 2020, there have been over 24 million confirmed cases worldwide, of whom over 838,000 have died.4 While most people only experience mild symptoms, about 1 in 5 people become critically ill and require hospitalization.5 As the virus is mainly thought to spread by person-to-person transmission6, many countries invoked national curfews or quarantines.7 By the first week of April 2020, more than 3.9 billion people, were under some form of lockdown.8 These restrictions led to a global drop in the economy, termed the worst recession since the Great Depression.9 Different countries have explored ways to reboot their economy, while minimizing the 1 Mayo Clinic Staff “Coronavirus disease 2019 (COVID-19)” (7 August 2020) Mayo Clinic <www.mayoclinic.org>. 2 Mayo Clinic Staff, above n 1. 3 World Health Organization “WHO Director-General's opening remarks at the media briefing on COVID-19” (11 March 2020) World Health Organization <www.who.int>. 4 World Health Organization “WHO Coronavirus Disease (COVID-19) Dashboard” (31 August 2020) World Health Organization <www.covid19.who.int>. 5 WHO Team Health Emergencies Preparedness and Response “Q&A on Coronaviruses (COVID-19)” (17 April 2020) World Health Organization <www.who.int>. 6 National Center for Immunization and Respiratory Diseases (NCIRD), Division of Viral Diseases, above n 7. 7 Juliana Kaplan, Lauren Frias, Morgan McFall-Johnsen “Our ongoing list of how countries are reopening, and which ones remain under lockdown” (14 March 2020) Business Insider Australia <www.businessinsider.co.au>. 8 Alasdair Sandford “Coronavirus: Half of humanity now on lockdown as 90 countries call for confinement” (3 April 2020) Euronews <www.euronews.com>. 9 Gita Gopinath “The Great Lockdown: Worst Economic Downturn Since the Great Depression” (14 April 2020) International Monetary Fund IMFBlog <https://blogs.imf.org>. spread of COVID-19. There is indication that a level of immunity may result from infection10, suggesting immunity passports may be the solution. This research paper will discuss what immunity passports are, why they should be regulated, the advantages and risks they pose, how various countries are approaching immunity passports, and strategies regulators should employ to address the challenges of immunity passports. 2. What are immunity passports? It has been suggested that detection of antibodies to SARS-CoV-2 could mean an individual is immune from reinfection.11 While there is little evidence to definitively support this, the UK scientific community suggested that people infected could have immunity for up to 3 years.12 If true, this could provide the basis for immunity passports, a credential (most likely digital) that enables individuals to show they have had the virus, recovered, and thus cannot be reinfected.13 Given the uncertainty whether immunity to COVID-19 definitively exists, immunity passports could be used if and when a vaccine is developed to show someone is immune to infection.14 This would allow people to return to work and travel internationally. 10 Rebecca C H Brown, Julian Savulescu, Bridget Williams and Dominic Wilkinson “Passport to freedom? Immunity passports for COVID-19” (2020) J. Med. Ethics 0 at 1. 11 World Health Organization “”Immunity passports” in the context of COVID-19 Scientific Brief” (24 April 2020) World Health Organization <www.who.int>. 12 Adi Gaskell “The Legal Challenges Facing Immunity Passports” (6 May 2020) The Horizons Tracker <http://adigaskell.org>. 13 Privacy International “The looming disaster of identity passports and digital identity” (21 July 2020) Privacy International <https://privacyinternational.org>. 14 Above n 13. While the exact structure of immunity passports is not fully developed, digital identity companies see them as a viable solution.15 The passport would show verified credentials, a test result or health report from a health official, indicating their health status.16 This has been done with passports, birth certificates and other official documents, indicating that immunity passports are a plausible solution. The NHS app’s creators believe their identity system can form the basis for immunity passports. Users submit a photo from an official document, which the app matches to a user through a facial recognition system to give access to health records.17 In essence, immunity passports would allow people to verify their health status as free from the risk of developing and transmitting COVID-19, which would allow them to return to work, travel internationally, and rejoin civilization. While immunity passports could assist in reopening the economy, they also pose significant issues that could make regulating them difficult. 3. Why should immunity passports be regulated? The restrictions and quarantines placed to minimise spread of COVID-19 paralyzed economic activity.18 The United Nations Economic Analysis of mid-2020 indicates that the world economy is expected to drop 3.2 percent.19 The cumulative output losses from 15 Above n 13. 16 Above n 13. 17 Jake Wakefield “Coronavirus: NHS app paves the way for ‘immunity passports’” (26 May 2020) BBC News <www.bbc.com>. 18 United Nations | Department of Economic and Social Affairs, Economic Analysis “World Economic Situations as of mid-2020” (13 May 2020) United Nations <www.un.org>. 19 Above n 18. 2020 and 2021 are estimated at $8.5 trillion, wiping out the last 4 years of output gains.20 Governments have tried to mitigate financial burdens but have begun lifting their restrictions21, which risks asymptomatic, infectious people further spreading the virus. Immunity passports would ensure those mingling in society pose no threat. However, there are challenges that regulators need to be aware of. 4. What are the regulatory challenges of Immunity Passports? Brownsword and Goodwin (2012) state that regulators are responsible for taking sensible precautionary measures relative to the risks presented by emerging technologies.22 Although in the early stages, immunity passports pose huge risks that need to be guarded against. Firstly, immunity passports risk creating two classes of citizens: the immuno-privileged and the immuno-deprived.23 Passports could determine who could go to work, travel or engage in social and economic activities.24 Given there is no vaccine, this division is largely dependent on luck, money, social status and individual circumstances.25 Restricting socialization to those with immunity would deprive a large majority of society. Additionally, an app excludes marginalized groups who cannot access a 20 Above n 18. 21 United Nations, above n 18. 22 Roger Brownsword and Morag Goodwin Law and the Technologies of the Twenty-First Century: Text and Materials (Cambridge University Press, Cambridge, 2012) at 46. 23 Nigel McMillan “Immunity passports could help end lockdown, but risk class divides and intentional infection” (21 May 2020) The Conversation <https://theconversation.com>. 24 Charlotte Edmond “What is an immunity passport and could it work?” (19 June 2020) World Economic Forum <www.weforum.org>. 25 Natalie Kofler & Françoise Baylis “Ten reasons why immunity passports are a bad idea” (21 May 2020) Nature <www.nature.com>. smartphone or device, creating a digital divide and barring people from socialization due to lack of access.26 Alexandra L Phelan (2020) recognised immunity passports may incentivize people to contract the virus in order to return to normal activity.27 In particular, it may incentivize those who cannot afford to take time off work to contract the virus in order to gain immunity status.28 In countries without universal health care, those most incentivized to seek out infection may not have access to adequate health care, which could jeopardize the health of members in vulnerable communities.29 This introduces is a risk of increased fraud, as this incentive could create a black-market of immunity passports.30 People may forge immunity passports in order to be allowed back into society. If people are incentivized to contract COVID-19 or fake infection, this would undermine the efforts of the restrictive measures.31 Additionally, immunity passports could create a new form of workplace discrimination. Employers may be unwilling to hire persons without immunity as they could become infected and need time off. 32 Where not possible to work from home, this approach would require people to show immunity to stay employed.33 In essence, people could become 26 Rina Chandran “Back to work? Not without a check-in app, immunity passport” (6 July 2020) Reuters <www.reuters.com>. 27 Alexandra L Phelon “COVID-19 Immunity passports and vaccination certificates: scientific, equitable and legal challenges” (2020) 395 Lancet 1595 at 1596. 28 At 1596. 29 At 1596. 30 Rebecca C H Brown, Julian Savulescu, Bridget Williams and Dominic Wilkinson, above n 10, at 5. 31 Rebecca C H Brown, Julian Savulescu, Bridget Williams and Dominic Wilkinson, above n 10, at 5. 32 Natalie Kofler & Françoise Baylis, above n 25. 33 Privacy International, above n 13. excluded from working if they cannot prove immunity. Only allowing