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With all the talk about vaccine passports, many have pointed out that they seem to violate the spirit of existing law. The Health Insurance Portability and Accountability Act includes a privacy provision. This, according to the CDC, protects “sensitive patient health information from being disclosed without the patient’s consent or knowledge.” 

The law is popular because it seems to protect individual privacy. Plain people like me might justly suppose this would prohibit government or private parties from demanding to know whether I am vaccinated against Covid-19. After all, an untold number above 100 million Americans have natural immunities from prior infection – or cell memory or cross immunity from other infections – and do not want the vaccine. 

Why should they be forced to become second-class citizens? Surely HIPAA protects them?

Enter the fact checkers. These are teams of supposed experts associated mostly with news organizations such as USA Today, Reuters, the New York Times, Snopes, PolitiFact, and others. They provide seemingly authoritative examinations of popular claims circulating on the Internet, mostly to debunk them (especially keen to blow up non-left-wing claims) and discredit anything that runs contrary to media priorities. That’s not always true, and some of these fact checks are valuable. Others seem designed to sweep genuine debates and controversies under the rug. 

What did the fact checkers say about this claim that HIPAA would seem to forbid vaccine passports? You won’t be surprised: they say it is untrue. Snopes says that of course businesses can demand proof about vaccine status of customers because HIPAA’s “covered entities” are only health-care providers, not theaters and grocery stores. That is to say, private businesses, and thereby presumably local and state governments, can make any rule they want that discriminates against the non-vaccinated. 

Snopes didn’t go this far, but the fact checkers might also have pointed out that HIPAA offers exemptions for 12 “national priority” purposes, which is to say that the law matters unless governments decide it does not. One of these purposes is “preventing or controlling disease.” Based on this, my intuition here is that Snopes is probably legally correct even if I disagree with the proposed vaccine-passport policy. 

Without government pressure – such as that deployed by Governor Cuomo in New York – I have serious doubts that any theater, store, gym, or other public-accommodation enterprises would ever request such a thing. I’m unaware of any that ever has? Are you?

All of which is to say that the seeming good of HIPAA is pretty well wiped out by the proviso. Just about anything about your health status can be demanded based on the excuse that it is all about “preventing and controlling disease.” So much for that! 

Thus does a major claim against vaccine passports get thrown into the dustbin thanks to the fact checkers. And you might have noticed that the news of this was trending on Twitter as a top item. Indeed it went viral, spreading from place to place, invading every corner of public opinion, as if by magic. 

Let us think about why this might be. Is this purely organic or might there be some gaming going on here to manipulate public opinion? 

Right or wrong, the fact checkers have come to play an outsized role in shaping public opinion. Facebook itself decides which stories will be pushed to people’s timelines based on the opinion of these fact checkers. If something is deemed false, it is deprecated and buried. If something is declared to be true, Facebook pushes it out to you based on your browsing habits and publicly posted interests. You think you are getting a normal news feed of what matters – and most everyone believes this – but the underlying truth is that you are being manipulated. (The same is true of Google results.) 

A quick story of my own brush with the fact-checking junta. On May 1, 2020, I filed a very detailed historical piece called “Woodstock Occured in the Middle of a Pandemic.” It was filled with links and facts that revealed something very important. Pathogens are always with us. They can be deadly. There is almost nothing that governments can or should do about them other than keep people calm, simply because viruses are smarter than politicians. They knew that then, which is why society did not shut down. 

The fact checkers got to work. Reuters said it was true. Then the traffic came. Millions. Tens of millions. Facebook and Google pushed it out and I received floods of praise and emails. The ideas in the article entered the popular culture. It appeared on late-night TV and daily broadcasts. I watched in real time as my article had a real effect on public opinion, and made people wonder: what the heck is wrong with us? Why were they smart and we are so stupid to panic to the point of shutting down markets and social functioning? They did not lock down; why did we? 

That joy lasted only a few days. Lockdown lobbyists hit Reuters hard and drew attention to silly points such as that the disease wave did not peak in the summer but rather came before and after, as if Woodstock’s organizers could have known that while it was happening. I won’t go into the details of the enormous efforts to which I went to debunk the debunkers, but none of it mattered: the article was already declining in reach. 

Reuters corrected its own fact check from “true” to “partially true.” A few days later, the fact check went from “partially true” to “partially false.” It was on its way to obtaining the “false” designation when suddenly USA Today came to the rescue. The publication did its own fact check and said my article is “true.” Facebook once again jumped on it – they contract with all these fact checkers – and pushed it out and the article exploded in traffic again. 

I have no proof of the machinations that went on behind the scenes in all of this but I can imagine. Others got involved in deciding whether and to what extent my piece was worthy for inclusion in the public dialogue but the issue was settled when the mighty Snopes jumped into the fray and debunked my entire piece based on a claim that I had not even made, namely that the Hong Kong flu has a worse infection fatality rate than Covid-19 – something I never said because in fact no one knows the answer to that question for sure. 

The point is that I briefly had a front-row seat to observe how public opinion is created and manipulated in 2020 and now. What we have is not what we imagined would happen in the age of the Internet, namely the democratization of information and therefore the collapse of the cartel that has manipulated public opinion for decades. 

That could still happen. In fact, I think it is happening now, as doubts grow toward not only the “fact checkers” but also those companies that rely on them while cooperating with prevailing ruling-class elites to maintain their hegemony over the public mind. This last year inspired them to use every tool to maintain their grip but it is slipping day by day. They will win this battle but the war for the public mind is yet to be decided. 

Jeffrey Tucker is author of Liberty or Lockdown (AIER, 2020).

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