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The choice of Microsoft to host French health data is still not successful. French companies and associations filed an appeal before the Council of State on Tuesday March 19, 2024, to contest the authorization given by the National Commission for Informatics and Liberties (CNIL) to the Redmond firm. This is the second appeal filed with the Council of State after that of 2020. The applicants do not view favorably the storage of the health data of French people in the United States, and even less offering them as a gift to the American intelligence.
Mentioned in 2018 in the report on artificial intelligence by mathematician Cédric Villani, the Health Data Hub platform was officially launched in December 2019 as part of the law relating to the transformation of the health system. The objective is to make French health data “easily usable for medical research and advanced analyses”. The Health Data Hub (HDH) manages a data warehouse, EMC2, resulting from a European call for projects and created as part of a pharmacovigilance research program of the European Medicines Agency.
The CNIL maintains Microsoft against all odds
This warehouse combines patient data from four large French hospitals with data held by Health Insurance, such as reimbursements for consultations and care or even hospital pathways. EMC2 must “receive the anonymized data of 300,000 to 500,000 patients from different hospitals per year and compare them with their data from the national health data system, managed by Health Insurance, to enable the 'carrying out of research, of studies and evaluations in the field of health'”, explained the specialized site actorspublics.fr.
The giant co-founded by Bill Gates was involved in the creation of this platform. Microsoft chose the technologies and its request was justified by the need to quickly set up the Health Data Hub and its hosting. French and European capabilities were deemed insufficient at the time, which triggered a first round of criticism.
French professionals and associations reacted quickly, appealing to the Council of State to prevent the hosting of health data at Microsoft. The applicants demanded a proper call for tenders, but were refused. The government then committed to reviewing this decision and launching a call for tenders to choose the host, especially since the contract linked to HDH was the subject of a complaint filed in 2021 with the National Prosecutor's Office financial (PNF) by Anticor.
At the end of December 2023, the CNIL then authorizes a health data warehouse project for research which will be hosted by Microsoft for a period of 3 years. The maintenance of the American IT giant is justified, according to the commission, by the fact that the solutions proposed by other online storage providers did not meet the requirements. In addition, soliciting another actor to create an alternative to the Health Data Hub would compromise French relations with the European Medicines Agency, at the origin of this project.
The CNIL even goes so far as to “regret” in its decision “that the strategy put in place to promote researchers' access to health data did not provide the opportunity to stimulate a European offer capable of responding to this need”.
The reactions quickly followed. The host OVH regretted that “the alternative and transitional solutions proposed to comply with the requirements were not considered”, while Cloud Temple denounced “a new stage in the multiplication of partial copies of the SNDS (national data system health)”, which would increase the risks of this data leaking.
French companies are returning to the charge
Last February, the Internet Society association announced that it had filed an appeal with the Council of State. In a press release, the NGO underlines that “the disparities between the laws and legislation relating to data protection in force in the two countries could compromise the confidentiality of the health data of the French”.
Tuesday March 19, French companies and associations returned to the charge. A new appeal was filed before the Council of State. Among the applicants are the companies Nexedi, Clever Cloud and Cleyrop, as well as NGOs such as the Open Internet Project or the Digital Sovereignty Institute. They wish to cancel the authorization given in December by the CNIL, believing that the American cloud operator cannot host data as sensitive as the health data of the French, for reasons of security and sovereignty.
Microsoft, subject to American law, is affected by laws allowing Washington and its intelligence services to access data hosted by US companies, in particular with the Foreign Intelligence Surveillance Act, extended by Joe Biden until April 2024.
The applicants also hope to obtain a referral, by the Council of State, to the Court of Justice of the European Union on the validity of the new transatlantic data agreement, adopted in July 2023 by the EU and the United States. Two agreements of this kind have already been broken by European justice in recent years. The French companies and associations behind this new appeal are therefore banking on a cancellation of the new agreement, which conflicts with the GDPR.
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