Management of the pandemic and protection of the privacy and personal data seem increasingly at odds. Self-certifications have been needed to move since last year. For months there has been discussion of a possible European vaccination pass, for Italy there is already one that is needed in the passage to the orange and red regions. This pass must be reviewed according to the Privacy Guarantor. With Giovanni De Gregorio, Academic Fellow at Bocconi University’s Department of Legal Studies, we examined the critical points of the document.
HEALTH ISSUE
Before the legal one, there is a health issue. There is no certainty that the completion of the vaccination process as well as recovery from the virus will always protect you for a period of at least six months, i.e. the duration of the passport, given that the duration of immunity after the vaccine is not yet clear. or illness. Finally, the negative swab, the third way to get the vaccination pass, even if only for 48 hours, is the snapshot of a moment that guarantees not to have a positivity at a given moment, but does not involve any coverage.
PRIVACY AND DATA ISSUE
All three cases involve the presence of personal and sensitive data. “If I have to restrict a personal freedom, but I do it on the basis of data not yet testable, this raises doubts. Why should my personal freedom be restricted on the basis of information that does not guarantee the application of certain procedures? ‘
PROCEDURE
The Privacy Guarantor reported the lack of involvement of the Guarantor Authority as well as the preparation of an impact assessment on data protection as established by the European regulation on personal data. The choice of the decree law to be converted with possible changes in Parliament is positive, but there is a strong risk of fragmentation of the systems if this passport were not adaptable to the form of the European pass. Fragmentation creates uncertainties for users’ rights.
INDETERMINITY AND PROPORTIONALITY
The indeterminacy of the purpose as well as of the conditions of lawfulness as provided for by the European regulation is problematic. Possible uses must be established by law. There can be no discordant application of the vaccination pass. Is it only needed for travel or can it also be used to give access to public places or services such as the swimming pool or the library? Furthermore, “There are no measures that guarantee the right to privacy and the protection of personal data”. Even if the processing in question is deemed necessary, there is no provision that balances the right to privacy of users with the needs of a public nature.
MINIMIZATION
There should be as little sensitive data as possible. Here are health data that should be protected. “Only sufficient data would be needed for the purpose, but if this is not clear, as in this case, the problem widens.” For example, it shouldn’t matter which of the three hypotheses is valid for the person who has the pass. All you need is a vaccination passport to meet the legal requirements. All data beyond name, surname and social security number should not be used. For this it would be enough to trace the data through an app or barcode.
RIGHTS OF THE INTERESTED PARTIES
If I do not know the data controller, who is not indicated, I cannot even ask for their correction if they are wrong. For example, I cannot exercise the right of access to understand which data are processed “.
ALTERNATIVE
A European response could have been awaited in order to rely on a widely discussed common framework. Furthermore, instead of referring to the three possibilities for issuing the vaccine passport, the passport could be linked to a serological positive index, therefore an objective numerical index, with a range indicated by the law within which the passport could be issued.
DISCRIMINATION
Passing through three hypotheses leads to a differentiation of freedom of movement. “There is a risk that someone may want to expose themselves to Covid in order to have this green light”. In general, the document becomes discriminatory when there is no regulatory framework that defines the limits, the purposes must be explained in detail.
In this case, the principle of equality can also be violated because the citizen cannot choose to get the vaccine at any time. “Many people are not vaccinated and many have not caught Covid. Those who did not catch the virus are the ones penalized ». Then there is a temporality that always discriminates those who did not have the vaccine first: if other doses were to be made, they would always be in the queue of the others. Added to this are the cases of subjects who, even after having the vaccine, have a very low level of antibodies.
Some individuals who cannot access benefits are discriminated against. Those who cannot move are discriminated against, but also those who can do so are discriminated against by the vagueness of the content because the use of the pass could not only be limited to traveling.
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