Showing posts with label malicious prosecution. Show all posts
Showing posts with label malicious prosecution. Show all posts

Sunday, June 27, 2021

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

Apple Store Osaka (S├ębastien 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.

Wednesday, October 3, 2018

Singapore Supreme Court rejects civil process torts

In August, the Singapore Supreme Court refused to adopt the tort of abuse of process and refused to extend the tort of malicious prosecution to the civil context.  The case is Lee Tat Development Pte Ltd v. Management Corp. Strata Title Plan No 301, [2018] SGCA 50 (Aug. 17, 2018) (summary).

Associate Justice Phang (Singapore Supreme Court)
The court opinion, which ranges over more than 100 pages, is a remarkable work of jurisprudence and should not go unnoticed by comparativist students of common law.  The opinion was authored by Associate Justice Andrew Phang Boon Leong.  Justice Phang is a Harvard LL.M./S.J.D. who worked his way up the academic ranks in law, business, and management in Singapore before his appointment to the bench about a dozen years ago.  He has a treatise in contracts among his bona fides.  I owe my awareness of this decision to James Lee, equity scholar and reader in English law at The Dickson Poon School of Law, King's College London.

My purpose here is not to get into the merits or challenges of the torts of abuse of process and malicious civil prosecution.  Suffice to say that if that is your interest, this opinion is mandatory reading.  From the 20,000-foot perspective, I'll say that for many years I did not teach these torts in 1L beyond the bare bones mentioned in my CAP casebook by Prof. Marshall Shapo.  Increasingly I'm feeling like I need to give these torts more bandwidth.  I'm not sure whether it's a function of coarsening society, a natural evolution of common law, or me just paying better attention, but I feel like these "meta-torts"—that is, torts about tort litigation; my term, not to be confused with meta-humans, nor with Birks, et al.'s quasi-tort equitable wrongs—are getting more play today than they used to.  Accordingly, this year I drafted multistate rules to guide students, and at some point, I will add the rules to my American torts primer.

Singapore Supreme Court (Terence Ong, CC BY-SA-2.0)
Instead I want to share three favorite bits of Justice Phang's opinion.  The first thing to notice here for the comparativist is that Singapore is a common law jurisdiction.  I confess, it's not the first nation I think of when reeling off a list of common law countries.  For an academic, it might ought be.  (I have been there, and it is a lovely, unique place.)  Singapore inherited English common law by way of the British East India Co., a distinction in which, of course, it is not unique.  At the same time, Singapore's unusual role as a tiny economic powerhouse, dependent on and defined by its commercial relationships with the world, make its common law a unique and worthy study in internationalism.  Thoughtful and contextualized, Justice Phang's opinion exemplifies this point.  For survey research, the court thanked academic amicus Prof. Gary Chan, a colleague of Phang's from the law school at Singapore Management University.

Of 'quenchless feuds'.  Justice Phang (¶ 1) elegantly characterized the land dispute that underlies Lee Tat:

As the Judge observed [in the High Court], this is yet another legal tussle in a series of bitterly fought litigation between the parties which stretches across more than four decades and which hitherto has resulted, inter alia, in five decisions of this court, excluding the present decision.  In the last of those decisions, this court characterised the protracted quarrel between the parties as a "marathon saga of litigation" [citation omitted].  At this juncture, some seven years and yet another set of proceedings later, it seems appropriate to say, in the words of Herman Melville, that it is a "quenchless feud" (Herman Melville, Moby-Dick; or, The Whale (Norton, 1892) at p 169).
That this dispute arose in what appears to be a Singaporean iteration of the Hatfields and the McCoys does bolster the court's conclusion on meta-torts.  If transaction costs are part of the problem in your legal system—we know they're a huge problem in the American system—you might want to think twice about piggyback litigation.  At some point the law of diminishing returns eclipses justice in the dogged search for truth.

Of 'timorous souls' and 'bold spirits'.  In considering the wisdom of extending Singaporean common law, Justice Phang (¶ 11) broke out a Lord Denning gem:

In considering possible recognition of the torts of malicious civil prosecution and abuse of process in Singapore, we bear in mind the oft-quoted observations by Denning LJ (as he then was) in the English Court of Appeal decision of Candler v Crane, Christmas & Co [1951] 2 KB 164, where the learned judge drew (at 178) a distinction between "timorous souls who were fearful of allowing a new cause of action" and "bold spirits who were ready to allow it if justice required".  These observations have, in fact, been quoted more than once by this court itself [citations omitted].  However, there is a limit to judicial law making.

This is a beautiful treatment of the seeming conflict between common law as a law-making device, renowned for its very capacity to grow and adapt to new circumstances, and the fundamental identity of the western judiciary as a creature of only corrective justice in the Aristotelian mold.  Otherwise put, the enterprise of common law often seems at odds with the purportedly non-normative job of the judge.  To set the problem in its popular American baseball metaphor, when is a judge, whose job it is only to call balls and strikes, duty-bound to change the size of the strike zone?  This problem in relation to the nature of the common law enterprises has been a puzzler in the United States at least since Holmes's Common Law and has at times generated nuances of distinction between otherwise like-minded judges in such a way as to vex legal scholars.

William the Conqueror
Of the Norman Conquest.  In examining the policy rationale for malicious (criminal) prosecution to test its applicability in the civil context, Justice Phang (¶ 87) traced the division between criminal and civil law to 1066:

The character of a criminal prosecution, carried out with a view to punishing a public wrong, is fundamentally different from that of a civil prosecution which is carried out with a view to vindicating a private right.  The difference between these two types of proceedings was explained in the following passage from an earlier decision of this court, Public Prosecutor v. UI [2008] 4 SLR(R) 500 at [52]:

... With the reign of William the Conqueror, the [English] criminal justice system, as it then stood, changed drastically.  A distinction was created between liability for private wrongs and liability for public wrongs.  Sir William Blackstone explained clearly the distinction between public wrongs and private wrongs in Commentaries on the Law of England vol 4 (A Strahan, 15th Ed, 1809) as follows (at p5):

[P]rivate wrongs, or civil injuries, are in infringement or [a] privation of the civil rights which belong to individuals, con[s]idered merely as individuals: public wrongs, or crimes and [misdemeanours] are a breach and violation of the public rights and duties, due to the whole community, con[s]idered as a community, in [its social] aggregate capacity.

As a result of the above change in the English criminal justice system, the individual victim was replaced by the State.  The offence was considered to be committed against the State and the liability of the offender was, accordingly, owed first and foremost to the State.  This is the criminal justice system which Singapore has inherited and maintains to this day.... [emphasis added by Justice Phang].

Justice Phang (¶¶ 88-90) derived from this history three salient distinctions between criminal and civil process.  First, criminal charges more than civil claims can impugn a defendant's reputation in the community.  Second, the consequences of criminal conviction are more invasive of the defendant's rights than the consequences of civil liability.  Third, criminal prosecution is an enterprise of public authorities, while civil prosecution is a private pursuit.  In all three respects, then, the need for a remedy to malicious prosecution is greater in the criminal context than in the civil context.

A useful review of abuse of process, malicious (criminal) prosecution, and "malicious use of civil process" in American law can be found in Barry A. Lindahl, 4 Modern Tort Law: Liability and Litigation ch. 40 (updated June 2018) (available on Thomson Reuters Westlaw), which begins (§ 40.1) by differentiating the three concepts.  Meanwhile Justice Phang's opinion in Lee Tat takes an elegant snapshot of the common law world.