Disputed allegations in malicious prosecution suits against Apple raise data protection issues

Apple Store Osaka (Sébastien Bertrand CC BY 2.0)

A case of identity theft, now the subject of lawsuits against Apple and a security contractor, SIS, in three jurisdictions, seems to have raised an alarm about data protection.  But the case might be more complicated, as the defendants have accused the plaintiff of false pleadings.

Plaintiff Ousmane Bah was a 17-year-old Bronx honors student and permanent resident alien applying for citizenship at times relevant to the complaints.  An acquaintance of Bah's acquired Bah's temporary New York driving learner's permit (ID); it is disputed what Bah knew about the acquisition.

The ID did not have a photo, and the biographical data did not match the acquaintance's in all particulars, such as height.  Nevertheless, when the acquaintance was, according to the complaints, apprehended trying to shoplift from Apple stores in New York, New Jersey, and Massachusetts, he was misidentified as Bah.  Bah was criminally charged, subject to arrest warrants, and repeatedly compelled to defend himself.  The case does not directly implicate the known risk of race discrimination in facial recognition algorithms.  But in Bah’s version of events, Apple's use of facial recognition technology to identify the perpetrator in subsequent incidents gave police a false confidence that the suspect was Bah.

Apple and SIS have filed for Rule 11 sanctions in New Jersey and characterize the complaint in that jurisdiction as fiction.  They rely on discovered communication between Bah and the acquaintance to allege that Bah knew well that he was being impersonated, and that misidentification resulted from the acquaintance’s deliberate deception, not from error on the part of Apple or SIS. 

Media have been quick to seize on the allegations in the initial complaint, which does resonate with extant privacy issues in public policy.  If the plaintiff’s allegations are complete and accurate, then the case speaks to Americans’ lack of comprehensive data protection law.  A data protection regulation like Europe’s, generally speaking, would shift the burdens of fair and accurate identification to the defendants, rather than a victim of identity theft, time and again.

Moreover, if the plaintiff’s allegations are complete and accurate, the case has unpleasant overtones in race and socioeconomic equality.  A mismatch of data between the false ID and the acquaintance's appearance prompts concern that “black” was all the retailer needed to see, and one must worry whether persons of limited means can afford to defend themselves against false charges and wrongful arrest, not to mention the collateral effects of publication of misidentification to third parties, such as employers and creditors.

Bah claims defamation and malicious prosecution.  The complaints at least allege evidence in support of actual malice, which Apple and SIS deny.  Malicious prosecution is usually a claim made against public officials in tandem with civil rights violations, but the tort is viable against private parties who initiate criminal proceedings on false pretenses.  Whether the plaintiff’s allegations hold up, I do not know.  The counter-allegations of Apple and SIS in seeking sanctions in the New Jersey case are biting.

The cases are:

• Bah v. Apple Inc., No. 1:19-cv-03539-PKC (S.D.N.Y. filed Apr. 22, 2019) (Court Listener);
• Bah v. Apple Inc., No. 2:20-cv-15018-MCA-MAH (D.N.J. filed Oct. 27, 2020) (Court Listener); and
• Bah v. Apple Inc., No. 1:21-cv-10897-RGS (D. Mass. filed May 28, 2021) (Court Listener).

Bah is represented in the New York case by UMass Law alumnus Subhan Tariq, '13.  My thanks to Steven Zoni, '13, for bringing this case to my attention.

Ted Lasso heads to UK, will coach AFC Richmond

From The Daily Show with Trevor Noah (Oct. 6, 2020)

A new Apple TV+ show has Saturday Night Live alum Jason Sudekis playing southern-drawl-wielding American football coach "Ted Lasso," as he is recruited to coach an English Premier League (PL) soccer squad.

Lasso's fictitious team in the Ted Lasso comedy series is "AFC Richmond," but Sudekis wore an authentic Manchester City FC (my team) hoodie for his interview with Trevor Noah on last night's Daily Show.

Financially regrettably, this show compels my wife and me to re-subscribe to Apple TV+.  We shelved the channel, pending new content, after we finished the highly gratifying For All Mankind (blog), and after I finished the sufficiently compelling if after all tritely pedantic Morning Show (both shows 2019, second seasons forthcoming).

Ted Lasso is a co-creation of Scrubs (2001-2010) creator Bill Lawrence, which scores dispositively in my playbook, though I don't think Lawrence has since re-created that Scrubs magic.  Ted Lasso is a spin-off, or spin-up, of NBC Sports promotional shorts imagining Lasso's appointment as head coach of Tottenhan Hotspur.

 

Incidentally, I'm a consistent critic of NBC's intellectual-property monopoly over PL broadcast rights in the United States.  NBC carves up the PL season so that one would have to subscribe to an impossible, and impossibly expensive, range of commonly owned services to follow a favorite team.  Americans would never tolerate such exploitation of American football broadcast rights.  NBC and the PL are greedily short-sighted, because inculcating loyalty to a single side is essential to sell British soccer to the American viewer in the long term.  It remains to be seen how UK regulators would react were NBC, since merging with Sky, to dare to try such such shenanigans there, where team loyalty is a multi-generational sacrament.  Other sports-loving countries won't have it.

Sports comedy is supremely watchable when it's well executed.  I thoroughly enjoyed Hank Azaria's Brockmire (2017-2020), though I have not watched baseball in many years.  And who can forget comedy-drama Sports Night (1998-2000)?  The West Wing (1999-2006) is too often credited for Aaron Sorkin's introduction of fast cuts and fast-paced dialog into small-screen canon, but it was on Sports Night that he pioneered the art.

The Sudekis interview appeared on The Daily Show just a day after Trevor Noah opened with some Premier League humor (cue to 1:13), noting Aston Villa's defeat of both Manchester United and Liverpool, the latter 7-2.  Noah is a Liverpool supporter.

Here is the trailer for Ted Lasso.