Welcome to The Corner. In this issue, we discuss the consequences of tech giants moving into the health care industry and how adopting open-source software can spur innovation in the industry and can protect consumer data.

Google Could Revolutionize Health Care IT. Here’s Why It Shouldn’t, and What We Could Do Instead

Big Tech is moving into health care. Google has announced an intention to buy Fitbit and is also poised to collect health data on tens of millions of patients through a deal with St. Louis-based hospital chain Ascension. In March, Amazon, Berkshire Hathaway, and J.P. Morgan announced their health venture, Haven. Apple is using its devices to help academics run studies with millions of participants. And Microsoft and IBM are using artificial intelligence and machine learning to help researchers develop better cancer treatments.

The use of digital technology in health care has enormous promise, to be sure. But The Wall Street Journal’s coverage of Google’s Project Nightingale also revealed a potential dark side to the projects. Ascension, it noted, “also hopes to mine data to identify additional tests that could be necessary or other ways in which the system could generate more revenue from patients, documents show.”

That detail raises a key question that’s largely overlooked in our health care debates: Should the drive to maximize corporate revenues determine how health information technology develops and becomes integrated into medical practice, or should that be determined by medical science and the public?

Google, Amazon, Apple, and Microsoft could use their technical expertise to improve human health, but that is not their purpose. The purpose of these corporations is to maximize shareholder value, and that can lead them to use these technologies to very different ends.

For example, digitized health care databases derived from electronic medical records can be used by medical researchers to find out which medical procedures work better than others. On the other hand, the same data can be used to boost revenues by finding new candidates for unnecessary tests and screenings, unproven therapies, and avoidable surgeries. Studies show that up to 28 percent of all health care spending in the United States goes for various forms of overtreatment, and the billions in resulting revenues fattens the bank accounts of health care executives and shareholders.

Today’s health IT infrastructure is already highly monopolized. For example, just two corporations, Epic and Cerner, now control 85 percent of the market for electronic health records (EHRs) used by hospitals with more than 500 beds, according to a report from KLAS Research. Epic alone reportedly holds the health records of roughly 200 million Americans.

Despite – or perhaps because of – their large market share, these EHR giants produce software that isn’t very good. An investigation by Kaiser Health News in March found EHR systems are extremely frustrating for professionals to use and can be rife with errors that can lead to dangerous – and sometimes fatal – results for patients.

Another, bigger problem is that patients’ data might eventually be used for corporate control and exploitation.  A big part of the promise of EHRs is that the data they generate can be anonymized and collected in a searchable database that becomes an invaluable tool for advancing medical science and practice. But when so much of that data is collected by profit-maximizing, monopolists, much of the promise of digital medicine is lost.

An alternative path exists. In the 1970s, the Veterans Affairs Administration (VA) developed VistA, an open-source code system that was the country’s first EHR system. Open-source code broadly describes code that users can take and modify for themselves. In contrast, proprietary, closed-source programs such as Epic’s often do not allow users to alter the underlying program. Instead, medical providers often have to report a bug, as opposed to fixing it themselves.

As Open Markets’ Policy Director Phil Longman wrote in 2009, the open-source nature of VistA “allowed almost anyone with a good idea at the VA to innovate.” In his 2010 book about the VA’s health care system, Best Care Anywhere, Longman said, “[T]he VA software’s code has been continually improved by a large and ever growing community of collaborating, computer-minded health-care professionals.”

The VA’s collection of veterans’ health information also helped the agency and outside researchers study the safety of different drugs and treatments and the performance of different doctors. Dr. Nancy Anthracite, director and president of WorldVistA, a non-profit group that facilitates the adoption of the VA’s open-source code by other health care providers, told Politico in 2017, “I don’t know if there even is an EHR out there with data comparable to the longitudinal data that VistA has about veterans.”

Open-source code doesn’t mean abolishing intellectual property or competition. For example, private companies such as Medsphere have built their business around installing and customizing VistA, similar to how Red Hat sells an operating system based on the open-source Linux systems.

Nor does open-source code mean that patient records are open for all to see. The open nature of VistA actually makes it harder for hackers to steal records, because a decentralized community of programmers scours the source code for bugs and weak spots.

Massachusetts Senator and presidential candidate Elizabeth Warren has promised that her administration would appoint antitrust enforcers to investigate “the health records market, especially in the hospital space.” That would be a strong step. But in addition to antitrust measures, America needs to make a serious commitment to building a health IT infrastructure that is openly shared and directed by science and the public interest.

 ANTI-MONOPOLY RISING:

• The U.S.-China Economic and Security Review Commission issued its 2019 Annual Report to Congress warning, “As Beijing promotes its ‘China dream,’ which it promises to grow into the ‘world’s dream,’ Washington must plan for worse-case scenarios while trying to achieve the best ones.”  The report, approved unanimously by its 12 members, highlighted risks Chinese manufacturers pose to the American pharmaceutical supply chain and American markets. The report recommended that US agencies such as the Department of Health and Human Services investigate US-China arrangements and enact antimonopoly policies to check China’s power in the US.

• FTC Chairman Joe Simons announced that the commission is opening several antitrust investigations into online platforms. Speaking at the American Bar Association last week, Chairman Simons said that there were “multiple, other investigations going on with major platforms” and that an investigation was being pursued into whether mergers were completed because of “a campaign of exclusionary conduct that includes exclusionary behavior like exclusive dealings (and) loyalty programs.”

• A San Francisco Superior Court ruled last week that Facebook must provide documents requested by the California State Attorney General’s office in regard to an ongoing privacy investigation. Facebook said that it had “cooperated extensively with the state of California’s investigation” and was “look[ing] forward to continued cooperation and resolving the attorney general’s remaining requests.”

WHAT WE’VE BEEN UP TO:

• Claire Kelloway and Sandeep Vaheesan wrote a piece in The American Prospect about abuses in food and agriculture employment, especially for guest workers, refugees, and undocumented immigrants who don’t have the same legal protections. They also outline solutions that would give all workers the same level of security. “An overwhelmingly disenfranchised immigrant workforce and corporate collusion and concentration define work in food and agriculture today. A radical reconstruction of these labor markets is essential.”

• Claire Kelloway wrote an article in the Washington Monthly about America’s largest dairy processor,  Dean Foods, filing for bankruptcy. “It turns out, the consolidation of American agriculture is not a universally efficient or inevitable result of market forces. It is the product of policies that permit and reward monopoly power, regardless of the risks to producers, consumers, and even, ironically, to monopolists themselves.”

• Sandeep Vaheesan co-authored a Penn State Law Review article about the advantages of cooperative firms relative to investor-owned corporations, and he offers ideas on antitrust reform to protect and promote cooperation. “The promotion of fair competition among large firms should be paired with support for democratic cooperation within firms.”

• Barry Lynn spoke with The New York Times about the new coalition against Amazon, Athena, which will focus on issues such as surveillance, working conditions, and antitrust. “This is grass-roots democracy,” said Lynn. “There’s no money in it. Just people.”

• Claire Kelloway told Bloomberg Law about the federal antitrust price-fixing probe, which is looking at large players in the meat industry like Tyson, Hormel, and Smithfield. “Food industry consolidation that’s left a handful of companies controlling 80% of livestock production in some markets has made engaging in price fixing simpler,” said Kelloway.

• Barry Lynnspoke with Multichannel about the recent report in The Wall Street Journal on Google manipulating search results. “That Google maintains a secret blacklist to remove sites from search, beyond those required by law, is blatant censorship and a threat to free speech. It’s way past time for our federal and state governments to fix Google,” said Lynn.

• Matt Stoller spoke with Politico about Salesforce founder Marc Benioff’s stances on capitalism, monopoly power, taxing big corporations, and breaking up Facebook. Stoller praised Benioff, saying his “arguments of late seem to be correct.”

• Open Markets was featured in the Financial Times and PYMNTS for their letter to the FTC regarding the Google-Fitbit merger. “’Google should not gain control of Fitbit’s sensitive and individualized health data that can be integrated with data from its current services to entrench its monopoly power,’ said groups including the Open Markets Institute, Public Citizen and the Electronic Privacy Information Center.”

VITAL STAT: 260

Number of daily newspapers owned by one corporation, after GateHouse Media completed its acquisition of Gannett, making it the largest owner of daily newspapers in the country.

WHAT WE’RE READING:

• “Here’s One Reason the U.S. Military Can’t Fix Its Own Equipment”(The New York Times, Elle Ekman): How the Defense Department’s lack of a right to repair its own equipment demonstrates the power private corporations have over the military’s tools, to the detriment – and danger – of its members.

• “Privacy 2030: A New Vision for Europe”(International Association of Privacy Professionals): Inspired by the late European Data Protection Supervisor Giovanni Butarelli, this collection of essays and proposals recommends some ways to reach Butarelli’s vision of privacy rules to strengthen democratic society.

• “Powerless Antitrust”(Competition Policy International, Michelle Meagher): A brief history of corporate and antitrust law and how society can use both to check corporate power.

• “Decoding California AG Xavier Becerra’s battles with Silicon Valley”(Politico, Cristiano Lima, Nancy Scola, & Alexandra S. Levine): An in-depth interview with California Democratic Attorney General Xavier Becerra discussing the state’s investigation of Facebook’s privacy practices and how he is approaching antitrust enforcement.

Written by: Barry Lynn, Phil Longman, and Matt Buck
Edited by: Barry Lynn, Phil Longman, Daniel A. Hanley, Krista Brown, Udit Thakur, Michael Bluhm, and Matt Buck