An Intersection

Why a Federal Vaccine Pass or Database is Unconstitutional

In this Substack I will serialize my book on why and how we should “Legalize Privacy” by means of our rights to property and contract. But lately my main preoccupation, outside my work for Parler, has been fighting against vaccine mandates. (Primarily I’ve been sharing and talking about the work and ideas of others more qualified than I to explain the risks and (lack of) benefits of the mRNA coronavirus vaccines, with particular focus on the unfavorable risk-benefit ratio for healthy children.)

But today I realized that the main theoretical contribution I have to offer the world is relevant to an important front in the current struggle to protect our rights from government overreach: My theory of privacy—in particular my solution to the problem of the “third-party doctrine”—explains why current proposals for (1) mandatory vaccine passes/chips/QR codes, as well as (2) legislation establishing a Federal vaccine database, are not only ill-advised, but also unconstitutional.

I’ll make it brief, in hopes of reaching at least one person who can use my theory to help stop this imminent unconstitutional power-grab. But I’ll be happy to answer questions in the comments, below.

The “third-party doctrine” is what makes the above proposals seem constitutional. It says that, once you share your personal information with a “third-party”—e.g., a vaccine clinician, pharmacist, or even your doctor in many cases, unfortunately—you no longer have a “reasonable expectation of privacy” in it. Personal information shared with third parties, the doctrine says, is no longer protected by the Fourth Amendment to the Constitution. And so the Federal government may obtain it—say, to include in a shiny new centralized vaccine database—without a warrant. No probable cause or particularized suspicion required.

Many years ago I wrote and published this law review article explaining why, in light of the history of the third-party doctrine, its current interpretation and application is unjustified. And I explained how the problem could be fixed, guided by a principle in the common law of contract. Here is the solution, in a nutshell:

The doctrine arose in the early 1900s, in the “secret agent cases.” Think of Tony Soprano, plotting with a co-conspirator to do something hideous and criminal. The doctrine, as originally formulated, said no warrant was required should a co-conspirator turn informant, and rat out Soprano to the government. Soprano had shared the information with the co-conspirator, and therefore no longer had a reasonable expectation of privacy in it.

The doctrine remained essentially this way for decades until, in the 1970s, the Supreme Court transported it from the secret-agent-infiltrating-criminal-scheme context to the context of ordinary business records, created and kept in the context of everyday contracts, like the ones you and I make with our banks or phone companies. Fast-forward a few decades to today, and think about how many “third parties” you share information with daily, even hourly, just in going about your daily activities. (Hint: you’re doing it right now as you’re reading this.)

The context in which the “third-party doctrine” arose, I argue, is paramount. The reason Tony Soprano no longer has a reasonable expectation of privacy in information shared with a co-conspirator, is that their arrangement, which involves performing some hideous, criminal deed, is what the common law refers to as an illegal contract. And the common law deems illegal contracts unenforceable in total, including any explicit or implicit provision requiring the parties keep the whole thing secret.

So when the Supreme Court, with almost no explanation, transported this doctrine to phone and banking cases in the 1970s, it was not justified in doing so. When you and I share information in the course of performing perfectly legal activities—including getting vaccinated—we are doing so for a limited purpose, and with the reasonable expectation that the information we share will otherwise remain private. That expectation should be recognized and protected, by virtue of our right to contract. When we keep in mind the distinction between legal contracts and illegal contracts, the third-party doctrine is actually superfluous.

And this is why any law purporting to authorize a government official to obtain your COVID vaccination status, without first getting a warrant, is unconstitutional.