Beware of Google’s Foray into Health Care
Google worked with the Department of Health and Human Services’ Agency for Healthcare Research and Quality on what’s essentially a checklist. The tool surfaces common questions like “What is the test for” and “Why do I need this treatment” to “What are the possible complications.” Users can write their own and drag to adjust the order.
After completing, Google reminds you to bring a list of medications you’re taking, insurance card, and other documentation. Users then have the option to print out or email to themselves. The company says it “does not store any of the information,” and that the experience is accessible while signed out of your Google Account.
If you’re skeptical of Google’s claim that it “does not store any of the information,” you’re not alone. After all, this is the same company that has shelled out millions in settlement funds for exposing the data of hundreds of thousands of Google users.
Google’s foray into health care has brought similar concerns. To collect the data needed to build its algorithms, Google is making deals with hospitals. They provide information on the patients who come to them for services, and Google makes them first in line, or close to it, for the algorithmic data when it becomes available.
So, in short, Google is absconding with data from patients, which the patients had no idea they were providing – under the guise of promoting “interoperability” with hospitals for the exchange of data. Google is developing algorithms that would predict hospital and health care needs based on patients’ data.
But are all of these actions legally permissible? What are the limits on Google’s propensity for pooling all this data together? The Supreme Court will soon determine the answer to this question in Google v. Oracle.
Though this case truly revolves around an unrelated copyright dispute between two tech giants, one of the main questions the court will answer is if the coding Google took from Oracle is protected by the fair use doctrine to copyright law. The answer could determine the fate of Google’s expansive health care data plans.
Historically, this IP exemption has existed for common sense “copies” such as news reporting and school lesson plans. But Google seems to believe that commercial, for-profit uses that facilitate interoperability of software or data should also receive inclusion in the list of exemptions. The company’s insistence comes despite the Copyright Act stipulating that “all "original works of authorship” should receive copyright protection.
Google positioning itself against the text of the Copyright Act shouldn’t come as a surprise when its leaders have said over the years they don’t worry much about what the intellectual property rules say because much of that law is new and evolving. They can simply sustain the costs of losses and force the rules to be redesigned in their favor.
All that said, the Supreme Court effectively expanding the fair use doctrine to fit Google’s interests wouldn’t go over well with health care privacy experts. They say individuals own their records and should control their distribution and remain concerned about what could happen to that information and whether it could be traced back to patients. Data on patients would have their identities removed in theory. But, as one plaintiff has pointed out in a lawsuit against Google, cell phone location information would enable the matching of patient data with patients’ arrival at the hospital.
Hospitals across the country are participating in this exchange. Reports say the University of California-San Francisco has shared 1.4 million patient records with Google through a contract that dates back to 2016.
If Google is not stopped, privacy experts say, Google soon could find itself in the position of determining what treatments patients receive. Its clinical directives, based on its algorithms, could usurp the doctor-patient relationship as the cornerstone of how treatments are determined.
“It won’t matter what health plan you have,” wrote Robert Goldberg, vice president of the Center for Medicine in the Public Interest. “If a Google prediction model is in control of all the data, it can control medical decisions.”
After all, if Google is set free to prey on others’ technological developments and data, why would those firms continue to develop technology or refine data gathering?
These are not small questions, and everyone, from cell phone users to tech developers to patients of doctors and hospitals, has a stake in the answers.
The ball is in the Supreme Court’s hands.
Ashley Herzog is a freelance health care writer for the Heartland Institute