NY’s New One-Click Felony

By Albert Fox Cahn

With the Omicron wave crushing our hospitals and our hopes for a normal 2022, it’s easy to want to do anything to battle the pandemic. But one Albany effort to combat COVID-19 is so misguided that it’s not just destined to fail, it could land some New Yorkers in jail.

The danger comes from the slickly branded “Truth in Vaccination” bill, which was recently signed into law by Governor Hochul. While vaccines are the single most powerful tool we have to combat the pandemic, new criminal penalties will only undermine efforts to boost public trust in the life-saving medicine.  Last year I personally was vaccinated, I was boosted, and (if this law had been on the books) I would have been a felon.

This is because the sweeping law not only criminalizes  the handful of people who might be tempted to forge vaccine records, it targets everyone who examines the growing list of vaccine apps that track vaccine status. These apps have been insecure, ineffective, and now, because of this law, they are completely inscrutable.

Specifically, it’s now a crime anytime someone “alters…or destroys computer material indicating that a person did or did not receive a vaccination against covid-19.” But this is exactly what computer security researchers have to do to understand how well Covid-19 vaccine apps work or (in the case of New York) fail.

 When then-Governor Cuomo rolled out Excelsior Pass last spring, we were promised that the technology was cutting edge. Later, I forged a copy of the vaccine pass in just 11 minutes. When New York City rolled out its own vaccine app it drew international fanfare. The next week I showed it would accept a photo of Mickey Mouse as my vaccine card.

When government agencies and private businesses roll out new tools for tracking our health data, we should be able to look under the algorithmic hood and examine if the technology is effective. Today, if we try to do our due diligence, it’s a crime.

And the impact may go beyond just computer scientists. Many of us have seen our paper vaccine cards tatter and fray. Last year, we could have simply printed a new copy, but today that’s also a crime.

Of course, we want to do everything we can to battle disinformation and promote vaccination. But the best way to do so is through public education, not jail.

Cahn (@FoxCahn) is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.), a New York-based civil rights and privacy group, and a visiting fellow at Yale Law School’s Information Society Project.