Incident 295: Wrongful Attempted Arrest for Apple Store Thefts Due to NYPD’s Facial Misidentification

Description: New York Police Department (NYPD)’s facial recognition system falsely connected a Black teenager to a series of thefts at Apple stores, which resulted in his wrongful attempted arrest.
Alleged: Unknown developed an AI system deployed by New York Police Department, which harmed Ousmane Bah , NYC Black people and NYC Black young people.

Suggested citation format

Giallella, Thomas. (2018-11-08) Incident Number 295. in Lam, K. (ed.) Artificial Intelligence Incident Database. Responsible AI Collaborative.

Incident Stats

Incident ID
295
Report Count
5
Incident Date
2018-11-08
Editors
Khoa Lam

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Incidents Reports

An 18-year-old from New York is suing Apple for $1 billion, claiming that a facial recognition system at its stores falsely connected him to a series of thefts.

Ousmane Bah, who was arrested at his home in November, alleges that the warrant he was served included a photo of someone else. The lawsuit also claims that a detective with the New York Police Department concluded that the thief caught by a store surveillance camera “looked nothing like” Bah.

The lawsuit, citing the detective, says that Apple uses facial recognition software to identify shoplifters. The company declined to comment on the lawsuit itself; it would say only that it doesn’t use such technology in its stores.

Bah said his interim driver learner’s permit, which does not have a photo, had been either lost or stolen. His attorney told The Washington Post that the permit may have been presented as identification at an Apple store, erroneously connecting Bah’s name with the thief’s face in the company’s security system. That means every time the perpetrator walked into an Apple store, his face would register as Bah, the attorney said.

Bah had been charged in multiple jurisdictions, including Delaware, Massachusetts, New Jersey and New York, according to the lawsuit. Three of the cases have been dropped, the suit said, but the one in New Jersey is still pending. An N.Y.P.D. spokeswoman told The Post that the case in New York has been sealed and that she cannot provide information about it.

As for the Massachusetts case, the lawsuit said, Bah had never set foot in Boston before his arraignment. He even claimed to have an ironclad alibi: He was attending his senior prom in Manhattan on the day the Boston store was hit.

The lawsuit alleged that Bah “was forced to respond to multiple false allegations which led to severe stress and hardship in his life, and also significant damage to his positive reputation that he had put so much effort into upholding.”

The lawsuit seeks damages of $1 billion, a declaration that Apple “wrongfully and baselessly damaged” Bah’s reputation, and a court order compelling Apple to “address the mistake in the stored data” that links Bah’s identifying information to the company’s facial recognition technology.

The lawsuit was filed in the U.S. District Court for the Southern District of New York.

Teen sues Apple for $1 billion, blames facial recognition at stores for his arrest

Apple is being accused of using facial recognition software in its Apple Stores to arrest the wrong person for theft — a New York student who’s now suing Apple for $1 billion. And while Apple tells The Verge it doesn’t use facial recognition technology in its stores, the case is weird enough, and there’s enough wiggle room, that it’s not clear if that’s the whole truth.

Ousmane Bah, 18, claims in a lawsuit that he was incorrectly identified as the robber in several Apple Store thefts across multiple states, but denies that he’s the person in the photo that accompanied the warrant for his arrest. Backed by surveillance footage and the testimony of a detective, district attorneys in New York and Boston have already dropped the charges against Bah, the lawsuit states. (He is still being accused of larceny in New Jersey in a pending case, according to the document.)

According to the lawsuit, NYPD detective John Reinhold first noticed that Bah “looked nothing like” the suspect in the surveillance video of a Manhattan Apple Store that was robbed. According to the lawsuit, the detective then explained that Apple’s security technology identifies suspects of theft using facial recognition technology.

When we reached Reinhold on the phone for comment, he agreed that Apple doesn’t technically have facial recognition in its stores, but also that his statements as described in the lawsuit were correct. He declined to answer further questions, but it’s worth noting that the second defendant on the lawsuit, Security Industry Specialists, might explain the contradiction — it could have been that company which used facial recognition to analyze security footage after the fact, and possibly outside of Apple’s facilities.

SIS Security doesn’t explicitly mention Apple as a client on its public website, but the third-party firm seems to have a long working relationship with Apple, and a 2016 employee handbook hosted at its website specifies Apple as a client.

The lawsuit states that Bah was presented with a police report which claimed a SIS loss prevention employee caught him stealing Apple Pencils on security video from a Boston Apple Store. Allegedly, Apple initially claimed it didn’t have surveillance video, but eventually produced the footage, according to the lawsuit.

Bah claims that he couldn’t have attempted the Boston theft because he’d been attending his senior prom in Manhattan at the time, but speculates the real thief could have stolen his information from a learner’s permit he’d previously lost — one which didn’t have a photo.

The lawsuit tries to justify the $1 billion claim by alleging that Apple and SIS caused harm to Bah by their wrongful actions, including causing him to be arrested by the NYPD at his home in four in the morning, forcing him to miss school and a midterm exam, which then hurt his grades. The suit claims Apple was negligent, intentionally inflicted emotional distress, and defamed and slandered Bah, among other charges.

Apple claims it isn’t scanning customers’ faces, after teen sues for $1 billion

An Illinois federal judge on Thursday refused to let Apple dodge a class action alleging that it violates state law through its facial recognition software, finding that the proposed class’ allegations that the company illegally collects and stores face scans can proceed, according to Law360 (a subscription is required to read the entire article).

In April 2019 an 18-year-old college student, Ousmane Bah, sued the tech giant for US$1 billion claiming the company’s facial recognition software, Face ID, led to his false arrest and saw him accused of thefts at Apple retail stores in several states.

The plaintiff said the incidents adversely affected his education and reputation and caused him stress and hardship. His complaint accuses Apple of negligence, infliction of emotional distress, slander, libel and fraudulent concealment.

According to the lawsuit, NYPD detective John Reinhold first noticed that Bah “looked nothing like” the suspect in the surveillance video of a Manhattan Apple Store that was robbed. According to the lawsuit, the detective then explained that Apple’s security technology identifies suspects of theft using facial recognition technology.

Apple claims that it does not use facial recognition in its stores. Reinhold told The Verge that this is true, but that the second defendant on the lawsuit, Security Industry Specialists could have used facial recognition to analyze security footage after the fact, and possibly outside of Apple’s facilities.

SIS Security doesn’t explicitly mention Apple as a client on its public website, but the third-party firm seems to have a long working relationship with Apple, and a 2016 employee handbook hosted at its website specifies Apple as a client.

Bah claims that he was at this senior prom in Manhattan during one of the thefts he was charged with, in Boston. He told Bloomberg that he had previously lost a non-photo learner’s permit, which may have been found or stolen by the real thief and used as identification in Apple stores. As a result, Bah claimed, his name may have been mistakenly connected to the thief’s face in Apple’s facial-recognition system, which he said the company uses in its stores to track people suspected of theft.

In other Apple legal news, the tech giant is asking a Texas federal judge to conduct a post-trial hearing by phone after a jury slammed it with a $502.8 million verdict for infringing VirnetX’s network security patents, citing “hardship” the company’s attorneys would face due to the coronavirus pandemic.

Judge allows facial recognition lawsuit against Apple to continue

Apple is being sued by a man due to repeated accusations the man was behind numerous thefts at Apple Stores across the eastern seaboard of the United States, attempted thefts that were conducted by others who were impersonating the man.

The lawsuit, filed on May 28 in the U.S. District Court for the District of Massachusetts, is suing Apple and Security Industry Specialists, a contractor working for Apple on store security. The lawsuit claims the plaintiff Ousmane Bah was falsely accused of performing a number of Apple Store thefts, which led to his arrest in New York in November 2018.

The lawsuit appears to be a continuation of another legal action by Bah against Apple and SIS, launched in April 2019. It seems the claims are the same as in that lawsuit, but specifically takes aim at the activities in the Massachusetts Apple Stores.

According to the lawsuit, Bah received a learner's permit for driving in New York State in March 2018, which took the form of a printout that contained details of his height, weight, date of birth, and eye color, but not his photograph. Bah lost his temporary permit within the following two months, but had received a permanent plastic version with his photograph.

The missing temporary permit is alleged to have been used by someone else as identification for an Apple Store theft in Greenwich, Connecticut in April 2018. The man is said to have not resembled Bah at all, aside from being Black, such as being 6 foot 1 inches tall when Bah is 5 foot 7 inches.

Bah says Apple and SIS created a record for Bah as the thief in the video, and published the information to both SIS agents and Apple Stores in the Northeast US.

In May 2018, an SIS agent apprehended the impostor who attempted theft from a store in New Jersey. While the imposter was arrested by police, they were interrogated and the learner's permit provided as identification, which then led to SIS circulating a "Be on the lookout" notice for Bah as a "known shoplifter" with the wrong photograph to Apple Stores.

A third robbery on May 31 had Apple identifying the thief as "Bah" from their records, and informed the Boston Police Department that Bah was behind it, despite it really being the impostor once again. Apple intended to press charges against Bah for the thefts.

Part of the problem is Apple's alleged use of facial recognition, which it and SIS used to identify "Bah" as the perpetrator of the thefts less than 10 minutes after they took place. As the record of the fake "Bah" is unreliable, the lawsuit insists Apple and SIS knew its use of facial recognition was unreliable in this case.

In June 2018, Bah appeared in Boston Municipal Court and requested video evidence to prove he wasn't behind the crimes, but Apple advised the video had been deleted. However, months later, Apple presented video of another thief who apparently worked alongside the impostor "Bah."

Other attempts to secure video of the fake "Bah" failed as they were "deleted" by Apple or SIS, the lawsuit adds. It is proposed the supposed deletions were a "reckless disregard for the truth" especially considering the store videos surfaced during discovery for the lawsuit.

More thefts by the impostor took place in New Jersey in September 2018, and a fresh accusation of theft by Bah provided to police again used the same questionable data. This was followed by multiple thefts in October 2018, and ultimately Bah's arrest at his home in November 2018.

The arrest took place despite the photograph on the warrant being for the impostor, not Bah himself, a fact commented on by NYPD officers. A detective released Bah after spotting the issue, and advised that Bah was probably misidentified by a facial recognition system.

Two days later SIS employees caught the impostor at an Apple Store in Massachusetts, but despite fingerprints revealing the man's identity as Mamadou Barry, he was extradited to New Jersey as "Bah" for outstanding warrants.

Bah continued to be prosecuted in multiple states, with the incorrect data still being used by Apple and SIS.

Bah's lawyers laid out counts of defamation, malicious prosecution, intentional or negligent misrepresentation, and negligence against both Apple and SIS. The suit asks for damages for an unmentioned amount, to cease any further criminal accusations against Bah, to expunge the false allegations online and in print where possible to clear his name, to publicly apologize, and to set up a monitoring service to protect Bah's reputation.

Apple and SIS have yet to comment on the latest legal activity.

Apple sued over false accusations in Apple Store thefts by impostor

Because the allegations in the Third Amended Complaint at times differ materially from those considered by the Court in its first MTD Opinion, they will be described in some detail.

The first theft identified in the Complaint occurred on April 16, 2016, from an Apple store in Montreal, Canada. The Complaint alleges that an individual named “Ousmane Bah” was detained by Apple and SIS following an accusation that this individual had stolen merchandise from the Montreal store. (TAC ¶ 19). Bah alleges that his physical features do not match this individual's features. (TAC ¶ 20).

The next relevant event alleged did not occur until 2018. As the Court previously described, “[o]n March 26, 2018, Bah received a temporary New York State learner's permit, which contained Bah's personal descriptive details, such as height, weight, date of birth, and eye color, but did not include a photograph. By May 2018, Bah had lost this temporary learner's permit.” (MTD Op. at 2 (internal citations omitted)); (TAC ¶¶ 17-18). During 2018, Bah was a high-school student who resided in New York City.

Starting in April 2018 and continuing for approximately eight months, Bah alleges that Apple and SIS employees mistakenly identified him as the individual who committed a series of thefts at Apple Stores in New York, New Jersey, Massachusetts, and Connecticut. The Complaint asserts that the actual thief was Mamadou Barrie. (TAC ¶ 108). Bah alleges that his physical features do not match Barrie's features. (TAC ¶ 25).

In April 2018, Mamadou Barrie was detained in Greenwich, Connecticut, following an accusation by Apple and SIS that an individual had stolen merchandise from one of Apple's stores (the “First Connecticut Incident”). (TAC ¶ 22). The Complaint alleges that during the relevant period SIS provided security services at Apple's New Jersey stores and performed investigation and security services for Apple. (TAC ¶¶ 14-15). Barrie identified himself as “Ousmane Bah” using Bah's temporary New York State learner's permit. (TAC ¶¶ 23, 26). Though Barrie's apparent physical features did not match the physical features described in the temporary learner's permit (5'7” vs. 6'1”), Apple and SIS informed the police that the thief was “Ousmane Bah”. (TAC ¶ 26). Apple and SIS created an internal security record, matching surveillance footage from Apple's store of Barrie committing the theft with Bah's name and retained portions of surveillance footage showing the alleged theft. (TAC ¶¶ 26-27). They also “published” the allegation that Bah was the thief to their own employees. (TAC ¶¶ 27, 175, 188).

On May 24, 2018, Mamadou Barrie was detained for shoplifting from an Apple store in Paramus, New Jersey and identified himself as “Ousmane Bah” using Bah's temporary learner's permit (the “First New Jersey Incident”). (TAC ¶¶ 30-32). An SIS employee reported to the Paramus police that the name of the person detained by store security was “Ousmane Bah” but, in fact, the person was Barrie. (TAC ¶¶ 34, 37). Apple and SIS created a “Be on the Lookout, ” or “BOLO, ” notice under the name “Ousmane Bah” and internally matched surveillance footage of Barrie's theft with Bah's name. (TAC ¶¶ 39, 176). Apple and SIS sent the BOLO notice to their own employees, the police and unidentified others. (TAC ¶¶ 39, 175, 188). The Complaint asserts that using their identification from the Paramus theft, Apple and SIS mistakenly began attributing to “Ousmane Bah” prior thefts committed by Mamadou Barrie, including a May 5, 2018 theft from an Apple store in Short Hills, New Jersey that was reported to local police. (TAC ¶ 38).

On May 31, 2018, Apple and SIS employees reported to the Boston, Massachusetts police that a Boston Apple store had suffered a theft, committed by the same individual that committed the theft at the Connecticut store (the “Massachusetts Incident”). (TAC ¶¶ 41, 43). Bah alleges that the theft was in fact committed by Barrie. (TAC ¶ 45). Apple and SIS identified the thief to the Boston police as Bah based on the BOLO notice from the First New Jersey Incident as well as surveillance video and internal records from the Connecticut Incident. (TAC ¶¶ 44, 51, 69). They also “published” this allegation regarding the Massachusetts Incident to their employees and law enforcement. (TAC ¶¶ 175, 188).

The Complaint alleges that Barrie committed two thefts from Apple stores in Cherry Hill, New Jersey and Freehold, New Jersey on September 18, 2018 (the “Second New Jersey Incident”). (TAC ¶¶ 75, 77). Apple and SIS employees reported to the local police that these stores had suffered a theft and identified Bah as the thief. (TAC ¶¶ 76, 80). Bah also alleges that Apple and SIS “published” these allegations to their own employees and law enforcement. (TAC ¶¶ 175, 188). On December 6, 2018, plaintiff Bah received notice of charges against him relating to the theft of the Freehold Apple store. (TAC ¶ 142). On December 12, 2018, charges against Bah relating to theft of the Cherry Hill store were dropped after an individual who was not Bah appeared in response to a summons. (TAC ¶¶ 147-49).

The Complaint alleges that Barrie committed another theft at an Apple store in Rockaway, New Jersey on October 18, 2018 (the “Third New Jersey Incident”). (TAC ¶ 96). Defendant John Woodruff, an SIS employee providing security at the Rockaway store, identified the theft upon a review of surveillance footage. (TAC ¶ 96). Woodruff named Bah as the individual responsible to the Rockaway Police. (TAC ¶ 99). In addition, Apple employees reported the theft to a central database maintained by SIS called the “Global Security Operations Center, ” which maintained information tying Bah to multiple thefts. (TAC ¶¶ 97-98). Bah also alleges that Apple and SIS “published” this allegation to their own employees. (TAC ¶¶ 175, 188).

The foregoing chronology is the lead up to the New York arrest of Bah. The Complaint alleges that Mamadou Barrie committed thefts at an Apple store in Staten Island, New York on October 22, 2018 and October 24, 2018 (the “New York Incidents”). (TAC ¶¶ 100-01). On November 8, 2018, defendant Detective John Reinhold of the NYPD issued a “METRORCA Alert, ” which requested information on the New York Incidents and included a description and photograph from store surveillance video of the thief. (TAC ¶ 102 & Ex. 2). In response to this alert, on November 15, 2018, Woodruff emailed Detective Reinhold informing him that the individual “is known to us as Ousmane Bah” and that “he has been hitting Apple stores for quite a few months and doesn't appear to be stopping.” (TAC Ex. 2; TAC ¶ 103). The Complaint also alleges that based on a surveillance video image from the Staten Island store, Reinhold ran a search to identify the individual using facial recognition technology. It asserts that the results from a NYPD database search identified both Barrie and Bah. (TAC ¶ 107).

In the early morning hours of November 29, 2018, Bah was arrested at his home by NYPD detectives, defendants Pagan, White, Granata and Pattelli (the “Arresting Officers”). (TAC ¶ 118). The Complaint alleges that following Bah's arrest he was taken to an NYPD precinct where Reinhold determined that Bah did not match the physical appearance of the thief from the New York Incidents after comparing Bah's appearance to images of the individual captured on surveillance video. (TAC ¶ 126). Bah was released and, subsequently, the charges related to the New York Incidents were dropped. (TAC ¶ 126).

The Complaint details two additional thefts. On October 28, 2018, less than a week after the New York Incidents, but before Bah was arrested by the NYPD, Apple and SIS employees reported to the Trumbull, Connecticut police that a Trumbull Apple store had suffered a theft. (TAC ¶¶ 92). An Apple employee, relying on information from the Global Security Operation Center, named Bah as the thief. (TAC ¶ 92). The Complaint alleges that the thief was in fact Barrie. (TAC ¶ 141).

On December 1, 2018, two days after Bah's arrest in New York, Barrie was allegedly detained for shoplifting from an Apple store in Holyoke, Massachusetts. (TAC ¶ 135). Apple and SIS employees reported the theft to the Holyoke police, who arrested and fingerprinted Barrie. (TAC ¶ 138). Through fingerprinting, the Holyoke police identified the thief as Barrie. (TAC ¶ 138).

Bah v. Apple Inc.