The UK government finally gave into demands to release controversial NHS data-sharing deals – which up to this point had been kept secret – after tech justice organisation Foxglove and openDemocracy threatened legal action that was due to kick off today.
On the eve of the lawsuit, the government finally capitulated and offered up contracts for the data-store deal with Google, Microsoft, Amazon, Peter Thiel’s controversial data analysis company Palantir and the Vote Leave-linked company Faculty, which has ties to Dominic Cummings.
Mary Fitzgerald, OpenDemocracy’s editor-in-chief, said in a statement: “It shouldn’t have taken a lawsuit threat to get us these documents, but we’re pleased to share them with the public now. Transparency is just the start of the debate we need. openDemocracy are studying the documents closely and will be reporting what we find, in the public interest.”
The organisations had learned from government lawyers that the original NHS contract allowed Faculty to retain intellectual property rights for the project, train AI models on the data, and profit from the deal. The government has since claimed that the contract with Faculty has been amended to sidestep this issue. However, the updated document is not one of those handed over – something that the two organisations are still pushing for.
The Covid-19 data store that the tech firms are working on collects data from myriad sources, including ‘anonymous’ but still sensitive and confidential patient data, in order to predict demand on the health service. The project is primarily run by the health service’s digital arm NHSX, Palantir and Faculty.
The NHS assured detractors of the high-profile project that the data “will only be used for Covid-19” and that “only relevant information will be collected”. It also said that the data would be destroyed or returned at the end of the crisis, and insisted in April that “the companies involved do not control the data and are not permitted to use or share it for their own purposes.”
But the original contracts confirm that Faculty was allowed to profit from access to the data. Foxglove and OpenDemocracy organisations received the following statement from government lawyers:
“Following the date of [Foxglove’s FOI] request, the standard G-Cloud contract was amended to surrender all intellectual property rights from the project to the NHS. The amended contract, which also retrospectively applies to the whole project, included two additional clauses relating to intellectual property rights, stating that the supplier [Faculty AI]:
- must not use in the course of its ordinary business activities (except when providing the Services) any software (including any trained machine learning models) developed by the Supplier for the Buyer during the course of the Project
- may, for the avoidance of doubt, use any software that the Buyer makes available as open source on the same terms as any independent third party.”
A Faculty spokesperson told NS Tech that the company “asked for its contract to be amended to make clear that it will derive no commercial benefit from any software, including trained machine learning models, developed during the course of the project and that the use of the IP is under the sole control of the NHS”.
Cori Crider, founder and Director at Foxglove, said in a statement: “Why did the initial contracts with tech companies let them keep the intellectual property rights from their unprecedented access to NHS data? Why was Faculty allowed to train its models and potentially profit off the NHS in a crisis, until Foxglove’s FoI prompted them to amend the contract? And, since we haven’t seen it, does the new contract really fix the problem?”
In response to the Freedom of Information (FoI) request submitted last month, the Department of Health and Social Care dragged its feet, claiming it had to weigh the tech firms’ “commercial interests” before releasing the documents.
“The idea that Amazon or Palantir’s ‘commercial interests’ might outweigh the public’s right to know what’s going on with this data deal is, frankly, crazy,” Crider told NS Tech at the time.
There are concerns that this project – and the “unprecedented” transferral of NHS data into the hands of private companies it involves – signals an attempt to further privatise the NHS by stealth. Campaign groups, doctors and MPs have raised fears that coronavirus has triggered a private “power grab” in the ailing and chronically underfunded NHS.
There are legitimate fears that contracts like the data-store deal could outlive the crisis. As NS Tech revealed in April, Palantir has offered up 45 engineers (a comparatively large number), to work on it in exchange for just £1 – sparking suspicions that the company believes it will eventually profit from the deal in some way.
The DHSC was also asked to release the data protection impact assessments carried out for the project. The government claims it will publish this document on the NHS website today.
The documents shared with Foxglove and openDemocracy are publicly accessible and available below:
Note: This story has been updated to include a statement from Faculty.