Venues gearing up for the safe welcoming of an increasing number of attendees have begun to put requirements in place in an effort to minimize the risk of spreading the COVID-19 infection among those entering their respective facilities. Those vaccinated may show proof of vaccination. Those not vaccinated or unable to be vaccinated may show a negative COVID-19 test. The guidelines vary state-to-state, and combating the potential threat of phony vaccination cards are complicating matters.
When the Saratoga Performing Arts Center announced its re-imagined summer ballet season this week, it came with a series of safety protocols. Seats will be sold in designated pods of two inside the amphitheater, and designed pods of two and four on the SPAC lawn. Show attendees will be required to complete a health screening questionnaire, pass a mandatory temperature check prior to entry and wear a face mask at all times.
Additionally, all attendees are required to show proof of a completed vaccination or a negative 72-hour COVID-19 test.
In late March, New York became the first state in the country to introduce a digital pass to seemingly make it easier for attendees as well as for venues to validate the authenticity of that proof.
Anyone vaccinated or tested for COVID-19 in the State of New York is eligible for an “Excelsior Pass,” and the passes provide proof of vaccination, a PCR test, or an Antigen test. According to the state, users are able to store their “pass” digitally on their smartphone with the Excelsior Pass Wallet app – which is free from the Apple App Store and Google Play Store - or to print the pass from the Excelsior website and bring it to the venue with them. Businesses and venues can then scan and validate the pass to ensure COVID-19 vaccination or testing requirements are met for entry.
To facilitate the pass, the website collects a person’s COVID-19 status as well as their name, date of birth, zip code, vaccination or COVID-19 test type, date and location. The state says that personal information will not be used for marketing purposes. Some privacy advocates are concerned, however.
“It is a little bit scary in that you put your information in, verifies that you’ve had the vaccine, and gives you a kind of pass that has a QR Code on it. The question then is that every time you go in to somewhere that requires you to show proof of vaccination, you could be tracked,” said Greg Rinckey, co-founder of Tully Rinckey law firm.
“There could be a database of what type of venues you’re entering, when you’re going and when you’re coming. It’s not the same as just showing someone your vaccination card at the door. When someone is scanning a QR code, a database can be built that shows who went and what time you went. That’s where a lot of privacy advocates get concerned,” Rinckey said. “It’s one thing to require proof of vaccination, it’s another thing to say that you have to be scanned in with some mechanism that can track you,” he said. “I think as long as you can provide proof you’ve been vaccinated, that should be sufficient. Where a lot of people have problems is with the ‘passport.’ The passport can track you.”
The state currently says that participation in the Excelsior Pass is voluntary, and New Yorkers can always show alternate proof of vaccination or testing - like another mobile application or paper form - directly at a business or venue. The small print related to the Excelsior Pass carries a lengthy list of disclaimers that includes notice that the state may disclose personal information without an applicant’s consent in certain instances related to legal matters.
“We’ve all seen what can happen with the E-ZPass,” Rinckey said. “It’s meant to be used for paying the toll, but how many people have gone through an E-ZPass toll plaza a little bit above the speed limit and then suddenly get a letter in the mail that says you’ve exceeded the speed limit going through the plaza?” In 2015, the New York Civil Liberties Union revealed that wireless E-ZPass tollbooth transponders were being read routinely throughout New York City to systematically collect location data about drivers.
“Unfortunately, what we’re starting to see now are fake proofs-of-vaccination, so I think there is eventually going to be a mechanism where you’re going to have to have ‘official’ proof of vaccination. And that is what the Excelsior Pass does do,” he said.
“It’s an interesting area of law with privacy concerns. You know that the government has an interest in making sure that there aren’t health concerns. And in order to reopen the economy and in order to reopen these venues – especially where there are going to be thousands of people - you really do have to have a mechanism to know that the people you’re allowing in who are going to be in close proximity with others, have either been vaccinated or have had a negative test,” Rinckey explained.
The potential solution? “Probably a mix. Having proof of vaccination in a system where you can verify you’ve been vaccinated, but in a way that can’t be tracked. It’s the act of scanning - that tracking mechanism - that makes people nervous.”
Gov. Andrew Cuomo announced starting April 26, museum capacity will be raised to 50% and movie theater capacity to 33%. On May 19, indoor large arena capacity will be raised to 25%. “The numbers are stable and going down, so we can open up more economic activity,” Cuomo said.
In Saratoga County, nearly half of the county’s overall population of 230,000 have received at least one dose of the vaccine. Breaking it down further, over 60% of county residents over the age of 18 have received at least one dose, topping the national average, which is just over 50% for that category, according to the CDC.
The guidelines regarding so-called vaccine passports are being debated at state levels, with some states - Arizona, Florida and Texas among them - already expressing their opposition to the idea, citing mostly privacy concerns. In the future, particularly when international travel begins to ramp up, Rinckey says he can see the federal government offering guidelines to instill a higher or enhanced level of proof than the states.
At SPAC, the ballet schedule takes place in mid-July, and the venue says proof may come via either a card or a digital pass. It is unclear how the state’s indoor/ outdoor capacity designation may relate to Saratoga Performing Arts Center which has a capacity of 25,000 as an amphitheater (pavilion) and outdoor (lawn) venue.
There has yet to be an announcement regarding other traditional SPAC programming – such as the Saratoga Jazz Fest - or the summerlong pop concert schedule which is tentatively slated to feature Dave Matthews Band, Rod Stewart and others, and is coordinated by concert promoter Live Nation.