July 26, 2023

Warren Opens Investigation into Secretive Google Efforts to Secure Exclusive Access to Millions of Servicemember and Veteran Tissue Samples

Warren Opens Investigation into Secretive Google Efforts to Secure Exclusive Access to Millions of Servicemember and Veteran Tissue Samples

Contract Would Reportedly Give Google Exclusive Monopoly on Tissue Sample Data from DoD’s Joint Pathology Center and Charge DoD to Access its own Data Meant for Public Good

Text of Letters (PDF)

Washington, D.C. – United States Senator Elizabeth Warren (D-Mass.), Chair of the Senate Armed Services Subcommittee on Personnel, opened an investigation into a disturbing report on Google’s confidential effort to secure exclusive access to millions of tissue samples held at the Department of Defense’s (DoD) Joint Pathology Center (JPC). Senator Warren sent letters to Google CEO Sundar Pichai and Secretary of Defense Lloyd J. Austin III, asking Google and DoD for answers about these secretive dealings that threaten servicemembers’ and veterans’ health privacy and government transparency. 

“The Department of Defense’s Joint Pathology Center has millions of tissue samples from service members and veterans that are meant to support the public good – but Google came dangerously close to landing an exclusive monopoly on these samples and the right to charge DoD for access to this data,” said Senator Warren. “Google and the DoD owe the American people answers for these shady dealings, which could violate the privacy of our service members and veterans.”

The JPC contains more than 31 million blocks of human tissue and 55 million slides, including many rare samples, making it “the federal government's premier pathology reference center supporting the Military Health System (MHS), DoD and other federal agencies.” 

“I am alarmed by reports that Google tried to privately broker a deal to secure exclusive access to JPC data. According to the ProPublica report, Google approached JPC in 2015 to pursue the valuable – and potentially profitable – pathology slides, undermining the public government contracting process that would typically include soliciting competitive bids to make sure any agreement maximizes the benefit to the public interest. Google launched its years-long campaign by submitting an ‘unsolicited proposal,’ which would have provided the company with ‘exclusive access’ to the data for at least four years. The proposal included a ‘requirement that it be able to charge the government to store and access the digitized information,’ effectively excluding the government from tapping into its own data unless it paid a fee to Google. In an effort to cover its tracks, Google also inserted a non-disclosure agreement into the proposal, and disturbingly, may have attempted to improperly influence the process by making an employment offer to a DoD employee,” wrote Senator Warren in her letters to Google and DoD. 

“The DoD’s actions showed clear ‘favoritism’ towards Google getting the JPC contract. Specifically, three incidents raise ethical and legal concerns about DoD’s relationship with Google,” wrote Senator Warren in her letter to DoD:

  • In 2015, a naval officer who was “working with Google on a project to apply machine learning to medical imaging” reached out to JPC with an unsolicited proposal from Google indicating an interest in determining “exactly what JPC has.” JPC staff raised concerns and asked if the deal “need(ed) to go through an open-source bid” and flagged that “giving Google access to this information without a competitive bid could result in litigation from the company’s competitors.” Despite these concerns, the JPC director invited Google to the facility for a private tour – an exclusive offer that may not have been given to other interested contractors. 
  • In 2017, Google pushed the JPC to release sensitive personal health data. The company wanted “clinical, demographic, and patient information from the repository” that could have “compromise(d) patients’ anonymity.” The director of the JPC “dissolved” discussions with Google at that point citing the inability “to find a pathway that we legally could do and ethically should do.” But DoD eventually allowed Google to return to the negotiating table. 
  • In 2020, the Defense Health Agency (DHA) resumed discussions with Google once JPC issued a request for information (RFI) for a pilot project to modernize its archives. The RFI terms specified that “no feedback would be given to companies about their submissions and that telephone inquiries would not be accepted or acknowledged.” Despite this, the DHA Chief Information Officer (CIO), Thomas “Pat” Flanders, insisted on meeting with Google. At the subsequent meeting with Google, Mr. Flanders reportedly “wanted to see how both the government and company might profit from the (JPC’s) data so that he could influence the requirements (of the bid) on the government side.” This left DoD staff, and even Google employees, “speechless” as Mr. Flanders appeared to be rigging an open bidding process to favor Google.

“Despite Google’s best efforts to obtain exclusive access, JPC issued a request for information in 2020 for a pilot project to modernize its archives. Google doubled down on its brazen tactics after the company lost the pilot project to Johns Hopkins. In a letter to DoD, Google wrote ‘that the company had been unfairly excluded from ‘full and open competition,’ a bold claim considering the frequent interactions between Google and JPC over the better part of the last decade. Frustrated by its lack of success at DoD, Google launched a lobbying campaign in Congress, where the company secured favorable report language in the National Defense Authorization Act for Fiscal Year 2023 (NDAA FY2023) stating that the ‘process by which the JPC has chosen to digitize (its archives) may not fully incorporate advances in technology to scale this effort in a timely manner,’” wrote Senator Warren in her letters to Google and DoD.

Senator Warren noted that the public deserves a full accounting of Google and DoD’s secretive interactions regarding private health data contained at the JPC, complete transparency of Google’s efforts to skirt the public contracting process and its intended use for private health data, and information about DoD’ blatant favoritism towards Google. She is asking Google and DoD to answer a detailed set of questions about their secretive dealings and any use or access to JPC data or samples by August 8, 2023. 

Senator Warren has led efforts to protect Americans’ private data and hold government agencies and big tech companies accountable for ethics violations: 

  • In July 2023, Senator Warren sent a letter to DoD Under Secretary of Defense for Research and Engineering, Heidi Shyu, following reports that DoD’s new Office of Strategic Capital (OSC) is relying on consultants who will continue to work for private defense consultants and defense investment companies. Senator Warren is raising concerns that DoD lacks the necessary safeguards to prevent conflicts of interest in the OSC.
  • In June 2023, Senator Warren and Representative Andy Kim (D-N.J.) introduced the Department of Defense (DoD) Ethics and Anti-Corruption Act to limit the influence of contractors on the military, constrain foreign influence on retired senior military officers, and assert greater transparency over contractors and their interaction with DoD.
  • In June 2023, Senator Warren and Representative Pramila Jayapal (D-Wash.) reintroduced the bicameral Judicial Ethics and Anti-Corruption Act, legislation to strengthen our nation’s judicial ethics laws, impose an enforceable code of conduct on the Supreme Court, and ban federal judges from owning individual stock.
  • In March 2023, Senators Warren, Amy Klobuchar (D-Minn.), and Mazie Hirono (D-Hawaii) introduced the Upholding Protections for Health and Online Location Data (UPHOLD) Privacy Act, legislation that would expand protections for Americans’ personal health data by preventing companies from profiting off of personally identifiable health data for advertising purposes, allow consumers greater access to and ownership over their personal health information, restrict companies’ ability to collect or use information about personal health without user consent, and ban data brokers from selling location data.
  • In December 2022, Senator Warren sent a letter to Defense Secretary Lloyd Austin raising a series of questions for the Department of Defense (DoD) regarding press reports that former Google chief executive officer Eric Schmidt used his positions on defense advisory boards to further his own financial interests. 
  • In October 2022, Senator Warren sent two letters to Under Secretary of Defense for Acquisition and Sustainment, Bill LaPlante urging the Department of Defense (DoD) to insist on receiving certified cost data to justify any adjustments for inflation to current contracts and another to David Norquist, President and Chief Executive Officer of the National Defense Industrial Association (NDIA), expressing concerns that their lobbying efforts to increase the Pentagon’s budget to account for inflation could be violating post-government ethics restrictions.
  • Senator Warren has also fought to preserve existing ethics laws, including defeating a DoD provision in the fiscal year 2021 National Defense Authorization Act to weaken post-government lobbying restrictions.
  • In July 2022, Senator Warren announced two key data brokers’ commitments to permanently stop selling the location data of people seeking abortion services.
  • In June 2022, Senator Warren introduced the Health and Location Data Protection Act, legislation that bans data brokers from selling some of the most sensitive data available about everyday Americans: their health and location data. 
  • In May 2022, Senator Warren led thirteen of her Senate colleagues in letters to two data brokers demanding answers regarding their collection and sale of the cellphone-based location data of people who visit abortion clinics such as Planned Parenthood. 
  • In May 2022 Senator Warren and Representative Jayapal introduced their Judicial Ethics and Anti-Corruption Act (S. 4177, 117th Congress) to overhaul our nation’s judicial ethics laws and restore public faith in our court system.
  • In February 2022, Senator Warren introduced the Political Corruption Review of Infractions for Misconduct by Executive Servants (CRIMES) Act (S. 3582, 117th Congress), to strengthen the Hatch Act, which is a federal law that bars executive branch employees from engaging in partisan political activities using their official title, or taxpayer-funded government resources, and prevents sitting presidents from using the federal government as an arm of their political campaigns. 
  • In July 2021, Senator Warren released a statement on the Senate Armed Services Committee’s bipartisan adoption of her amendment to raise the recusal standard for Department of Defense employees. Under her amendment, Pentagon officials will be prohibited from participating in matters that affect the financial interests of their former employer, former clients, or former direct competitors for four years.
  • In March 2021, Senator Warren sent a letter to Secretary of Defense Lloyd Austin praising his decision to suspend dozens of Defense Department advisory boards and relieve hundreds of appointees to these boards pending a “zero-based review.” In the letter, Senator Warren also called for improvements as the DoD considers candidates for repopulating the boards that survive DoD's review.
  • In March 2020, Senators Warren, Richard Blumenthal (D-Conn.), and Bill Cassidy, M.D. (R-La.) sent a letter to Ascension, the second largest health systems provider in the United States, regarding the company's information-sharing partnership with Google-also known as Project Nightingale-that provides Google with the health records of tens of millions of Americans.
  • In December 2020, Senator Warren and Representative Jayapal reintroduced the Anti-Corruption & Public Integrity Act to fundamentally change the way Washington does business and restore the American public's faith in democracy, including by creating a new, independent anti-corruption agency dedicated to enforcing federal ethics laws and by expanding an independent and empowered Congressional ethics office insulated from Congressional politics.
  • In November 2019, following alarming reports of Google’s efforts to obtain the health records of millions of Americans without their awareness or consent, Senators Warren, Blumenthal, and Cassidy sent a bipartisan letter to Google demanding answers to the serious questions and concerns raised by “Project Nightingale”.