Big Tech: another reason why the NHS is at risk from trade deals

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This article was written by the Keep Our NHS Public Trade Deals sub-group and a longer version of this briefing is available in our resource section

Trade deals promote direct foreign investment and extend the powers of multinational corporations. Big technology companies (e.g. Amazon, Google, and Microsoft) provide one example of this kind of power grab. These companies (collectively known as Big Tech), with their huge resources for lobbying, have more or less written the official US trade goals for digital services known as ‘the Digital 2 Dozen’ (D2D). Big Tech are also influencing the World Trade Organisation’s (WTO) negotiations on new global rules for digital trade in their own interests. The new powers that these trade rules provide will have serious implications for the NHS.

Digital trade is now taking centre stage in new Free Trade Agreements (FTAs): for instance, it’s a key priority in the proposed UK-US and UK-Japan deals. The UK’s digital economy is fast developing, with tech companies extending their reach deep into the heart of government and public services.

The NHS has become hugely dependent on digital services. This dependency has not only increased dramatically during the Covid-19 crisis, but Secretary of State Matt Hancock has made it clear that it will continue to grow, with the help of the private sector, after the pandemic ends. The additional powers given to Big Tech by new trade rules make it more important than ever that the NHS is fully protected from new trade deals.

Data as the new oil

The raw material of the digital economy is data, so precious now that it’s sometimes referred to as ‘the new oil’. Personal data, for example, once captured, stored and sold, is hugely valuable to employers, insurers and other risk assessors, health providers, and finance companies, among others. The NHS, as a single payer healthcare system, holds one of the world’s most valuable stores of data, estimated to be worth around £10 billion per annum in monetary terms.

Big Tech is already gaining access to this data. You may have heard that a deal between Amazon (notorious for tax evasion) and the Department of Health and Social Care allowed NHS data to be handed over to the company so it could develop new health related products such as phone apps. Amazon was not charged for this access, even though – unlike the NHS – it will be able to profit from the arrangement. It can also pass on this data to third parties.

What does Big Tech want?

Among the trade rules that Big Tech has pushed for, four demands in particular will seriously impact the NHS. As these are they already part of the US’s D2D – they will shape negotiations for the US-UK deal, if not other deals in future.

  1. Transferring data across borders.

Big Tech want to ban governments from demanding that data is stored in its country of origin: instead it wants an unfettered right to collect, transfer, store, process, sell and otherwise exploit data in any country they choose. Once moved offshore, there are no guarantees that the UK’s laws protecting data can be enforced: the data is governed by the rules of the country where it is held. The destination of choice is the US, which allows technology companies to self-regulate, and has weak privacy and consumer laws.

Apart from undermining the security of health data, allowing the free flow of NHS data overseas could mean the loss of a valuable resource for research and health service planning at home. On top of which, digital trade rules could mean that NHS data, once moved to America, is mined there to create copyrighted products, such as new diagnostic tools or medical devices, which the NHS would then have to buy back at great expense.

2. Preventing ‘localisation barriers’

Big Tech want the right to access a country’s market but without having to maintain a local presence, such as a subsidiary. Without this, multinationals are not subject to national requirements and cannot be sued for breaches of domestic regulations, such as labour laws or tax regulations. Tax avoidance by these wealthy corporations can contribute to shortfalls in public revenue that are likely to mean more NHS cuts and/or greater tax demands on UK citizens plus heavier burdens of care on friends and families (especially women).

  1. Promoting the participation of foreign technology companies in national policy

Big Tech want future digital services to be subject to regulations that already exist, and without knowing what risks or issues these future services might pose. At the same time, these tech corporations want to be able to influence governments’ national policy-making processes. They call this ‘transparency for stakeholders’ but to be clear, this is not about allowing public scrutiny of Big Tech’s commercial operations: it means that governments have to tell foreign-based technology companies about – and then allow them to contribute to – the development of legislation, regulations and technical standards that might affect them. All in all, big corporations want the power to restrict domestic legislation.

  1. Banning the disclosure of source codes and algorithms

There are many reasons why a company should share source code (the set of instructions that control a computer programme), for example, to be able to deal with viruses. In the NHS, source code is a crucial part of medical equipment such as MRI scanners or syringe pumps. Banning the disclosure of source code means that the composition of medicines or the software for medical devices cannot be checked, yet a flaw in the source code could have fatal consequences for patients.

Algorithms are the basic logic of a computer programme, represented as a flow chart of options, and put into effect by source code. As human creations, algorithms are inevitably value laden: they will unavoidably share some of their designers’ assumptions and prejudices, including biases about race or gender. The NHS is the largest employer in the UK and, with algorithms playing an increasingly important role in decision-making about hiring and firing staff plus assessments affecting pay and promotion, they should be open to scrutiny.

Bias in algorithms used for clinical decision-making or social care can also have harmful consequences for patients. In the USA, for example, an algorithm introduced by Medicaid to assess the care needs of people with cerebral palsy did not take into account the possibility of diabetes as a co-morbidity. Consequently some people had their hours of care cut after being found to have ‘no foot problems’ when, as amputees due to diabetes, they actually had no feet.

Finally, the European Union’s General Data Protection Regulation (GDPR) includes a right, under certain circumstances, for individuals to be informed about the logic of the decision-making systems that affect them. This right may be undermined if US and WTO digital trade rules prohibit the disclosure of source codes and algorithms.

Digital trade and the NHS

Digital technologies may offer significant benefits for health services and patients, such as easier access to care  - at least for some (digitalising services also prevents access for those who cannot use IT for one reason or another). But there are deep concerns that corporate control of NHS data will hugely increase if the NHS is included in future trade deals.

The NHS would not be at risk if its services were entirely publicly provided. Given this is no longer the case, NHS services are especially vulnerable when, as is increasingly the case, trade negotiations are based on negative listing (where every service that a government does not want to be included has to be explicitly listed).

The Prime Minister and the Secretary of State for International Trade have repeatedly given assurances that the NHS is not ‘on the table’ in post-Brexit trade deals. However they remain vague about what they mean by ‘the NHS’ and how its comprehensive exclusion will be ensured, especially as there are complex connections between the NHS and associated services, such as digital. If the government really intends to exclude the NHS from trade deals, it must ensure that – in addition to exclusion from other relevant chapters - the NHS is clearly excluded from any chapter on digital trade to ensure that access to the NHS is not allowed via ‘the back door’.

What we say

Although co-operation between governments and technology companies will be unavoidable to manage some new digital opportunities, this should not be through FTAs as these will always seek to open up digital services to multinationals rather than manage digital services for the public good.

The NHS must retain control of operational and personal health data. The most effective ways of doing this include:

  1. in the short term, to comprehensively exclude the NHS from any future trade deals (including any chapter on digital services), and
  2. in the longer term, to return the NHS to a fully publicly provided service.

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