Scrutiny is key to the success of digital immunity passports

Is the convenience of a digital coronavirus immunity document worth the privacy concerns and investment, asks Emma Wright of law firm Kemp Little

In the heady days when we could all travel without restrictions, I found myself landing at Luton airport at the end of a half term at 1 am with two small children - my children equal in number to the border control staff faced with processing over 100 families. Electronic gates allowing passengers with machine-readable passports to proceed through them - although not without incident or delay - are restricted to those above the age of 12. At Luton airport I felt I had clearly ‘lost'. As I now type this article from south Leicestershire, on the ‘free' side of the lockdown boundary line, the two hours spent at Luton airport queuing and carrying two tired children to the soundtrack of wall-to-wall wailing is what springs to mind when the topic of digital immunity passports or certificates is raised. There will be one outcome for such a system: winners and losers.

Emma Wright, partner, Kemp Little

Even local lockdowns, while not at the level of impact of a total lockdown, still unnecessarily limit the movements of those people that are immune to Covid-19. The benefit of a digital immunity passport or certificate would be that those that are immune to Covid-19 can potentially enjoy full rights and freedoms regardless of the local or national lockdown rules in place. They are being lauded by some as the best chance we have to allow parts of our society to start to function again.

Perhaps understandably so? As the Government has continued to increase the UK's testing capabilities, there are also, theoretically, increased prospects of significant swathes of the population being able to establish whether or not they have immunity, either through an antigen test, a vaccine or simply knowing they have recovered from the disease. Yet with this confirmation of immunity, regardless of the form it takes, a fracture in society will emerge: those that are able to circulate generally without being able to transmit or be affected by Covid-19, and those that cannot. And we all know that the lockdown itself is more debilitating than the effects of Covid-19 for some.

These 'immunity passports' raise important considerations:

1. The reliability of the assessment of immunity - both in relation to the science behind the immunity and the veracity of the testing being conducted or vaccines being offered - both at a national and international level;
2. The ethical implications of building digital infrastructure that will control significant sections of society; and
3. How would such infrastructure remain secure - from either private sector exploitation or more unscrupulous cybercrime or fraud?

The analysis and confidence behind our testing systems will no doubt peak and wane over the next twelve months. Any immunity passport will no doubt provide those informed that they have immunity with a sense of confidence, but the margin for error on Covid-19 immunity should be independently verified and scrutinised. I'd suggest that this will be one area where there will need to be an open conversation as to the levels of confidence in any immunity status granted, either by the UK or internationally.

As with any passport, digital or not, it fundamentally controls the movement of societies. The Spanish flu was used to justify the ongoing use of the paper passport. The roll-out of a digital immunity passport also assumes that immunity is a binary decision - but with Covid -19 in its infancy, we simply don't know whether this is accurate, nor whether immunity is the same for all age groups and ethnicities. The creation of such digital infrastructure will have unintended consequences and most likely compound inequalities, particularly for those in our society who are already considered more vulnerable. The wider impact on human behaviour also needs to be considered - for those without immunity will likely be denied fundamental human rights. An app tied to a smart phone will compound both a digital and freedom divide. This needs to be anticipated, scrutinised and such rights protected. However, unintended consequences are hard to recognise and prevent.

Once issued, immunity passports, as with nationality passports, will be prone to fraud. Our digital world has lots of cutting-edge technologies using biometrics or facial recognition to combat this. However, we should caution against sleepwalking into a greater proliferation of these types of invasive technology without a full public debate as to whether this is what we want as a democracy. With an ability to verify identity, a digital immunity status confirmation transforms into a digital identity card. With a little bit of scope creep it can essentially resolve the new requirements on data collection for pubs, hairdressers and cinemas to collect contact details, and serves to limit an individual's ability to decline to provide it. We may decide as a society that this is appropriate - but let's have the debate before rolling out the technology. Building digital infrastructure that can control swathes of the population, whether that's through the public or private sector, should not be undertaken lightly. As can be seen in democracies around the globe, transparency and scrutiny of any digital system, even when it is introduced to address the pandemic, is key to user adoption. We can only hope that £12m worth of lessons (the cost of the failed contact tracing app) have been learned to build trust and confidence in any digital immunity scheme being built.

Emma Wright is a Partner at technology and digital specialist law firm Kemp Little LLP.