by Jody E. Aldcorn, Partner, & Abby Nann, Articling Student, McCarthy Tétrault (Vancouver, Canada)
|In this second instalment of a detailed analysis from Canadian law firm McCarthy Tétrault – originally posted on March 18, 2021 – the authors examine the existing travel passes that are available, and those that are in development, as well as the associated technical and legal considerations.|
There are several digital health pass products at various stages of development. Many are the result of public-private collaboration. Technologies such as blockchain, cryptography and mobile devices support apps that can verify health information, keep it secure, and share it through a QR code.
Unlike some of the biometric systems mentioned in Part 1 such as KTDI, these have been developed specifically to address COVID19 and therefore focus on verifying health status. However, there is the potential for these products to be integrated into a digital identity in the future. Some examples of current digital health pass products include:
CommonPass: an app that aims to provide a “trusted, globally-interoperable platform for people to document their COVID19 status to satisfy country entry requirements, while protecting their health data privacy”. CommonPass has been trialed on flights between Hong Kong and Singapore, and London and New York. More recently, Australia’s Qantas Airlines used CommonPass on a flight from Frankfurt to Darwin.
IBM Digital Health Pass: an app and digital wallet that will allow individuals to maintain and share their personal health information. In addition to air travel, it is also aimed at employees, customers and visitors entering physical locations such as workplaces and stadiums. It is currently in a pilot program with the State of New York and was used in February and at the beginning of March this year to facilitate entry
into arenas for sporting events.
IATA Travel Pass: an initiative led by the International Air Transport Association (IATA) which aims to offer four main components:
- a global registry of health requirements for entry into different countries
- a global registry of testing and vaccination centers
- an app that enables authorized labs and test centers to securely share results with passengers
- a contactless travel app that passengers can use to share their health results and verify that they meet the necessary health requirements for entry to their destination.
IATA Travel Pass, like CommonPass, is currently in trial use by several airlines.
Technical and privacy considerations
Countries and product developers are taking varying approaches to digital health passes and it is unlikely that one product will be used globally.
To facilitate seamless air travel, product developers recognize that rapidly-developing technology must be interoperable. Systems must be able to work together across geographic, organizational, and technical boundaries to exchange and process data in a secure, efficient and accurate way.
There are a number of initiatives, such as Good Health Pass, spearheaded by the technology industry to address the need for interoperability.
Digital health passes will involve the collection, use, storage and disclosure of personal information. In recent years, there has been a trend toward more stringent privacy legislation with data protection laws such as the European Union’s General Data Protection Regulation (GDPR) leading the way, and other jurisdictions, including California and Virginia, following suit.
In addition, various proposed amendments to privacy laws, including at the federal level in Canada, provincially in Quebec and in the United States, are further complicating the existing patchwork of inconsistent obligations. Consensus must be reached on the extent that personal health information (and potentially other information such as travel itinerary for contact tracing) can be used to ensure safe travel while adhering to privacy legislation which will vary between countries and regions.
Other legal, scientific and ethical considerations
Digital health passes will permit or restrict freedom based on whether a person poses a biological risk to themselves or others. This risk is mitigated once that person is vaccinated. However, there is unequal access to vaccination, and certain individuals may not be able to receive the vaccination for health, religious, or other reasons. This may increase discrimination, inequality, and restrict human rights.
Also, there remain scientific unknowns on the efficacy of the current COVID19 vaccines in preventing transmission (including COVID19 variants), and how long and how well the vaccines protect different population groups.
[Digital Health Passes: Ready for Take-off? Part 3 will be published on April 14, 2021]
[Lead image courtesy of Lufthansa Group/The Commons Project]