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Google-FitBit deal should go forward only with human rights due diligence, safeguards: Amnesty to EU

Global human rights NGO Amnesty International has asked the European Commission to block Google’s acquisition of wearables company FitBit, unless it integrates meaningful safeguards. The letter comes as the Commission’s investigation into the deal for competition concerns is expected to close in early December. 

In a letter addressed to the Commission’s competition policy chief Margrethe Vestager, the NGO said that the European Commission must ensure that the merger does not “proceed unless the two business enterprises can demonstrate that they have taken adequate account of the human rights risks and implemented strong and meaningful safeguards that prevent and mitigate these risks in the future”. 

Google had announced its acquisition of FitBit over a year ago, but is yet to be cleared by European regulators. In February 2020, the European Data Protection Board had also raised privacy concerns with the deal, stating that the companies need to transparently carry out an assessment of the data protection requirements and privacy implications of the deal. 

The FitBit merger is another clear example of Google’s “expansionist approach” to data extraction, it will simply aid the company to extend its data collection to the health and wearables sector, the human rights watchdog said in its letter.. “The sheer scale of the intrusion of Google’s business model into our private lives is an unprecedented interference with our privacy, and in fact has undermined the very essence of privacy,” it added. 

Google is incentivised to merge and aggregate data across platforms, Amnesty International warned. With access to highly sensitive health data as part of the deal, the company can potentially combine intimate health data and habits to “make even more invasive inferences about people, with knock on impacts in the areas of insurance, health care and employment”. This calls for the need for safeguards required as a condition of the merger to be meaningful and effective oversight, even though Google has agreed to not use FitBit health and wellness data for Google ads. 

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In August, Vestager’s office had opened an in-depth investigation into the deal under the EU Merger Regulation. The Commission flagged that the deal could further entrench Google’s dominance by increasing the vast amount of data it already uses to serve targeted ads. The Commission’s probe will also look into the effect of combining the companies’ databases and abilities in digital healthcare and whether Google should be able to “degrade the interoperability of rivals’ wearables with Google’s Android operating system for smartphones once it owns Fitbit”. The probe, being carried out with the cooperation of the European Data Protection Board and other competition authorities, is due to close on December 9.

The commission’s decision to scrutinize the acquisition led to Google conceding on some points: including a public statement in July 2020 that it would not use Fitbit data for ad targeting and to guarantee support for other wearables makers tat hoperate on Android. Even so, Google’s incentives to use Fitbit health data in ways that threaten human rights demonstrates the need to ensure that any safeguards put in place as a condition of the merger be subject to meaningful and effective oversight, notwithstanding that Google has committed it “will not use Fitbit health and wellness data for Google ads”.

Last year, Amnesty had lambasted the business model of Google and Facebook, arguing that “surveillance giants” enable human rights harms “at a population scale”. After the deal was announced in November 2019, a coalition of privacy, consumer and social justice groups had asked the United States government to block the deal, citing antitrust and privacy concerns. It would give Google another avenue to gather data health data and dominate internet search, they had warned.

Amnesty International also raised concerns with Google’s algorithms being deployed on vast data sets to predict and infer information about people. Profiling and the business model of targeted ads can potentially fuel discrimination by private entities or directly by platforms themselves, undermining equal access to human rights, the body warned. The risk of discrimination increases when profiling touches directly on people’s economic, social and cultural rights, “such as the right to health where people may suffer unequal treatment based on predictions about their health, and as such must be taken into account in the context of health and fitness data”, Amnesty said.  

“This power of the platforms has not only exacerbated and magnified their rights impacts but has also created a situation in which it is very difficult to hold the companies to account, or for those affected to access an effective remedy. Although there have been numerous regulatory actions against the big technology companies by data protection, competition and tax authorities worldwide, to date these have largely failed to disrupt the fundamental drivers of the surveillance-based business model” — Amnesty International

Flagging these concerns, the NGO called on the Commission to assess the human rights impact of the merger, particularly the right to privacy as protected by the European Union’s charter of fundamental rights and its data protection regime. Further, the Commission should allow the merger to go forward only if Google and FitBit can demonstrate that they have carried out “human rights due diligence and put in place effective safeguards to prevent and mitigate the human rights risks of the merger in the short term and long term”. 

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