Digital COVID Vaccine Passports Should Be Antitrust-Exempt

Our nation’s momentum toward accelerated COVID-19 vaccine distribution is fully apparent.  President Joe Biden has publicly urged state governments to make every adult in the U.S. eligible for a vaccine by May 1.

With this fast-track schedule, increasing attention now should be focused on how Americans will be able to digitally verify their vaccine completion status, not only for travel abroad but possibly even to get into local sporting events, theaters, hotels, or cruise ships.

The EU, which is further behind in vaccine distribution, ironically is ahead of the U.S. in planning an easily accessible digital green pass that will include proof that a person has been vaccinated.

Although the world at large still will be vaccinating at slower rates, the global lag should not deter the U.S. from developing its own policies to serve a population that will have ample opportunity to be inoculated soon, in light of the dramatically expanded supply of vaccines.

The U.S., like the EU, also should reflect sensitivity to data protection, security, and privacy.  Without these values, a digital vaccine passport may not gain necessary widespread acceptance.

Biden recently ordered 100 million more doses of the Johnson & Johnson single-shot vaccine.  The company is teaming up with rival drug maker Merck & Co. Inc. to produce it, Biden announced at the White House on March 10:

“Today, we’re seeing two health companies – competitors – each with over 130 years of experience, coming together to help write a more hopeful chapter in our battle against COVID-19. … [T]his is a historic, nearly unprecedented collaboration.”

Additionally, last April, tech giants Apple Inc. and Google Inc. – fierce competitors in mobile phones with their iOS and Android operating systems – jointly developed application programming interfaces and operating system-level technology to assist in enabling contact tracing.

In light of these two notable examples of pandemic partnerships between competitors, the next logical step would be for the Biden Administration to encourage cooperation by Big Tech to rapidly develop a national smartphone app that enables vaccination proof to be readily available.

For example, this effort might employ synthetic data, which is artificial computer-generated data that can stand in for data obtained from the real world.

This means that vaccination confirmation could be done without reference to a person’s actual medical records or other personally identifiable information such as age, race. or ethnicity.  A synthetic data set merely could confirm that a person has been vaccinated and verified, without having other information made available to any third parties to prevent hacking or forgeries.

But before this type of out-of-the-box thinking can be applied, it will be important that any implied, specific-purpose antitrust law immunity be made more explicit.  To date, it is unclear whether there has been any vetting of the Merck-Johnson & Johnson vaccine production agreement by the U.S. Department of Justice.

With U.S. Attorney General Merrick Garland now in place, it is timely to memorialize in writing that the DOJ would not initiate an antitrust prosecution if Big Tech competitors began working together with the focused aim of producing another clear public good – a digital vaccination passport.

This would not be intended to conflict with any current or future antitrust investigations or prosecutions involving Big Tech in other areas of joint activity, just as allowing Merck and Johnson & Johnson to combine vaccine production capabilities presumably should not preempt any other antitrust scrutiny of Big Pharma.

The Justice Department’s historic opposition to efforts that would create sector-specific exemption also would not be undermined by such a narrow, time-based (e.g., 12-18 months) exemption from the core harms that the antitrust laws are designed to police.  This initiative would not be aimed at affecting the price of vaccine passports, which presumably would be free to all those who were fully vaccinated.

It also would increase the availability of these passports due to the innovation of synthetic data for enhanced data protection, security, and privacy – all benefits for American consumers and for the travel and leisure industries.

And, if successful, the U.S.-developed digital vaccine passport could be made available on a global scale, which would help ensure that people around the world who are vaccinated also could have increased mobility, both within their countries and across geographic borders.

Stuart N. Brotman is a Distinguished Fellow at The Media Institute and is a member of the Institute’s First Amendment Advisory Council.  He is the author of Privacy’s Perfect Storm: Digital Policy for Post-Pandemic Times.  This article appeared in Law360.