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Allegations in wrongful arrest suit involving face biometrics against Apple, contractor get worse

Suit describes enrollment best practices failure, missed chances to correct mistake

Biometric facial recognition to verify identity

Apple is facing legal action over an alleged repeated pattern of carelessness and over-reliance on a face biometrics system, followed by malicious prosecution and negligent (or worse) misrepresentation.

Ousmane Bah filed a suit against Apple and its contractor Security Industry Specialists (SIS) days ago in the U.S. District Court for Massachusetts, alleging his name was incorrectly applied to the actual thief.

The case hinges on the use of a lost temporary driver’s learning permit for New York State, which Bah lost and was subsequently used, according to the filing, by an individual who committed theft in an Apple Store in Connecticut in April of 2018. Following the incident, the security contractor allegedly created a profile for the misidentified thief, attaching Bah’s name to his image and pushing it out to Apple Stores for a biometric blacklist of shoplifters.

The impersonator was then spotted committing another theft at an Apple Store in May, 2018, and misidentified as Bah on the basis of the blacklist. The police were notified, and Bah eventually wrongfully arrested.

Apple or SIS has deleted video images purporting to be Bah, according to the filing, despite them surfacing during discovery. Worse, videos were reproduced from the same incident showing an alleged accomplice, with no reason provided which this video could be produced but the one allegedly showing Bah could not. This evidence, the filing states, would have exonerated Bah.

Police arrested the real alleged suspect, but the discrepancies between the individual in custody and the claimed identity, such as the six-inch height difference, were apparently not noticed. In New Jersey, the imposter even got what was supposedly his own name wrong on a booking statement, but the Paramus Police Department took no action to confirm his identification, according to the plaintiff’s suit.

Bah was then arrested, and released after an NYPD detective noticed the photo attached to the warrant was not of him. The NYPD officer also noted that facial recognition had been used to identify Bah.

Subsequently, the NYPD has caught an individual repeatedly attempting to use Bah’s identification as his own.

The imposter was then caught again at an Apple Store in Massachusetts, and extradited under Bah’s name to face outstanding warrants. In this instance, the NYPD had already discovered that the imposter was not, in fact, Bah, though SIS employees continued to misidentify the perpetrator.

Bah has also been identified, wrongfully, according to the court filing, with shoplifting in other states, and notice served not only to him but also to other people with the same name. With prosecutions being carried out in multiple states against Bah, he is alleging multiple counts of defamation, malicious prosecution, intentional or negligent misrepresentation, and negligence on the part of both defendants.

Perhaps most damning to the defendants, Bah claims that an internal SIS email explained the misidentification, but SIS and Apple did not withdraw ongoing charges against him. Instead, they continued attempting to prosecute him in Paramus until June 2019. An SIS executive asserted in an Affidavit when Bah initially filed suit against Apple in 2019 “that no SIS employee had ever identified the Plaintiff to the New York Police or Apple.”

While the use of face biometrics for loss prevention at Apple Stores is not officially confirmed, the plaintiff’s reasons for thinking it used is laid out in the filing.

“The speed with which Apple and SIS personnel related the image of the (wrongfully identified) Boston thief to the (wrongfully identified) Connecticut thief, virtually in real time, strongly suggests that Apple, SIS, or both used FRT as an aid in its “positive” identification of the thief as Ousmane Bah.”

Bah was an honors student with no criminal record seeking permanent resident status at the time of the arrests, the filing says, making the ordeal even more injurious than it would otherwise have been.

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