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I know someone who received two doses of the vaccine, and so she has a real vaccination card. But she had substantial side effects from the second dose, and so doesn't plan on getting a booster. Her current plan, if boosters ever become required in her area, is to just add a fake third dose to her card.
What is the legality of this plan (in the US)?

It seems like the relevant federal law only forbids faking the government seals, which she wouldn't have to do because she has a real vaccine card. So absent additional legal restrictions on modifying such documents, would this violate the above law?

On the other hand, it seems like it would be crime to bring such a forged record into New York, given their new law against forgery. Is this correct?

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  • Comments are not for extended discussion; this conversation has been moved to chat.
    – feetwet ♦
    Jan 13, 2022 at 23:40
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    Before thinking about the implications of the actual recording of false information on the card, your friend would be wise to consider that each and every time she presented the card with the intent of deceiving someone into believing that she had received a booster would constitute fraud. Maybe she doesn't ever get caught, but the cumulative criminal liability from tens of counts of fraud is likely to be much more to worry about than the act of falsifying the document.
    – John Bollinger
    Jan 14, 2022 at 13:30
  • @John Bollinger could you please expand on that and turn it into an answer? Not all lying is fraud, so I'm curious how this would count as fraud under US law.
    – Betterthan Kwora
    Jan 14, 2022 at 14:57
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    @BetterthanKwora, the point of presenting a card to prove vaccination status is to gain access to a venue (store, restaurant, sporting arena, ...) that requires proof of vaccination status for entry. Presenting a card containing falsified data for that purpose is intentional deception in pursuit of personal gain, and (in theory, at least) at the expense of increasing health risks to others in the venue. Lying to achieve personal gain at others' expense is fraud. But this is tangential to the question posed, and I'm not prepared to offer NY-specific details.
    – John Bollinger
    Jan 14, 2022 at 15:08
  • While the question is US specific, it's not NY-specific. NY was just offered as an example of a relevant state law.
    – Betterthan Kwora
    Jan 14, 2022 at 16:46

3 Answers 3

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The relevant NY law originally said that

"Written instrument" means any instrument or article, including
computer data or a computer program, containing written or printed matter or the equivalent thereof, used for the purpose of reciting, embodying, conveying or recording information, or constituting a symbol or evidence of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.

The modification adds:

For the purposes of this article, a card provided to a person by a vaccine provider indicating the date a person received a vaccination against COVID-19, the type of vaccine and its lot number, and bearing a government logo or other indication that it is created by a governmental instrumentality, shall be considered a written instrument.

This is an unnecessary modification: a covid card is plainly a "written instrument". Working through the definitions of falsely made, completed or altered, we see that a covid card modified as described is a forged document, and always has been one. Actually using a forged instrument is a crime, and has been so, and even possessing one is as long as you possess or utter it "with knowledge that it is forged and with intent to defraud, deceive or injure another".

So, (1) it is a crime in New York, (2) it has long been a crime in NY and (3) is probably a crime in other states, when there forgery laws are functionally equivalent to NY laws. For example, in Washington, RCW 9a.60.020

(1) A person is guilty of forgery if, with intent to injure or defraud: (a) He or she falsely makes, completes, or alters a written instrument or; (b) He or she possesses, utters, offers, disposes of, or puts off as true a written instrument which he or she knows to be forged.

It does not matter if you forge a document in a state where it is legal (if any such state exists) and then transport it to a state where forged documents are illegal. If you possess it and intend to use it knowing that it is forged, it is a crime.

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    "utter" is distinct from "possess."
    – phoog
    Jan 13, 2022 at 9:49
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    "intent to injure" is going to be hard to prove. Transmitting COVID is a significant risk of injury, but that still would be unintentional. Sure, it's a wanton disregard for the safety of others, but legally that's quite different from intent. "intent to defraud" will hinge on the exact case, but who would be defrauded? NY has "intent to deceive", and that seems to be the easy one to prove.
    – MSalters
    Jan 13, 2022 at 11:18
  • @msalters but what would almost certainly happen is the state won't have to prove anything because the defendant will just plea out (because fighting it in court is expensive and risky)
    – eps
    Jan 13, 2022 at 14:24
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    @MSalters Anyone who believed the fraudulent information would be defrauded. I don't have to lose for you to defraud me - you benefiting from me when you shouldn't is sufficient for fraud.
    – corsiKa
    Jan 13, 2022 at 22:15
  • @MSalters Also keep in mind that "injury" is not necessarily limited to physical/medical injury. In legal contexts, "injury" can include various sorts of harm. This could be physical harm, but it could also be monetary loss or interference with the exercise of legal rights. -- It'll depend heavily on the details of the law, but even outside medical harm, it might still count as "injury" if it's in a situation which is considered a harmful interference in the exercise of the rights of the person relying on the info on the card.
    – R.M.
    Jan 16, 2022 at 0:12
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You say "absent additional legal restrictions on modifying such documents," but why are you assuming that absence?

There are indeed additional legal restrictions on modifying such documents. The first one that jumps to mind is 18 USC 1001. Under that statute, it is a felony punishable by up to five years in prison when a person:

in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully:

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

Because indicating a nonexistent vaccination on a vaccination card would generally be a materially false statement, it would be a felony to forge the card in the way you've described.

And this is of course on top of any state laws that would also be in play. Generally speaking, forging government documents is a terrible idea.

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    Jurisdiction. It's only a crime if you lie to the federal government.
    – user6726
    Jan 13, 2022 at 1:23
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    US 1001 is not applicable to fake driver's licenses. US 1001 only makes a crime of certain kinds of lying. The federal perjury statute is a different law even though it has "lying" in common with 1001. Federal laws are different from state laws.
    – user6726
    Jan 13, 2022 at 2:29
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    @BetterthanKwora showing a fake document to a liquor store doesn't violate 18 USC 1001, but it does violate other laws. Similarly, 18 USC 506 doesn't apply to vaccination cards because they are not "seals of departments or agencies." But that doesn't mean that it's legal to alter them: other laws make it illegal. Also, please note that a proper USC citation must identify the title. For example, 8 USC 1301 concerns alien registration, while 18 USC 1301 concerns lotteries.
    – phoog
    Jan 13, 2022 at 10:26
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    No. This is the statute that is routinely used for lying to FBI agents, forging government documents, etc.
    – bdb484
    Jan 13, 2022 at 15:45
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    @bdb484: While this is definitely a widely-prosecuted statute in general, it still would only apply in cases where the federal government has been directly lied to in some fashion (i.e. it's not "in any matter within the jurisdiction of..."). The state statutes cited by user6726 are likely to be relevant in a wider set of circumstances in practice. Of course, a state crime is still a crime...
    – Kevin
    Jan 14, 2022 at 19:48
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It depends what she intends to do with the forged card.

Note that N.Y. Penal Law § 170.20 creates the offence of criminal possession of a forged instrument if:

... with knowledge that it is forged and with intent to defraud, deceive or injure another, [s]he utters or possesses a forged instrument.

Criminal possession of a forged instrument in the third degree is a class A misdemeanor.

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