AlBaho Case

The AlBaho case case resulted in a landmark legal ruling, the first of its kind on various levels relating to e-mail privacy and student rights and refers to illegal e-mail espionage carried out against a doctoral resarcher in 1997, Tareq AlBaho. In September 2000, after a 2 1/2 year police investigation and criminal prosecutions, a French criminal court ruled that senior academics and administrators do not have the right to conduct secret e-mail sureveillance of doctoral candidates at their institute.

The ruling applied by extension to employer-employee relations and this was confirmed within a few months after the ruling when the French supreme Court (cour de cassation) overturned lower and appeal court rulings for an employee who had been dismissed for non-professional use of e-mail by Nikon-France.

Three senior staff at the École Supérieure de Physique et de Chimie Industrielles de la Ville de Paris (ESPCI) in Paris, including the head of a department, professor Hans J. Herrmann, the laboratory computer system administrator, Mrs. Francoise Virieux and a scientist who assisted her in
network administration, professor Marc Fermigier, were found guilty of "violation of the secrecy of correspondence", after prosecution under article 432-9; paragraph 2 of the French penal code. The three had colluded in January 1997 in the espionage of the e-mail of a doctoral candidate at the time, Dr. Tareq AlBaho, with the head of department, professor Herrmann, requesting the other two to undertake the espionage.

The original article of the penal code had referred to "private correspondence" between two parties without specifying technical details of the method of communications. The ruling, which was upheld by the criminal court of appeals on Paris in December 2001, effectively made espionage of e-mail equivalent to tapping a phone line or steaming open a letter.

The ruling was the first of its kind in France, and a great rarity worldwide.

The judgement defined "private correspondence" as "all written connections between two identifiable persons, whether concerning messages, letters or contained in sealed or unsealed envelopes". The ruling brought e-mail firmly under the auspices of post and telecommunications law. The guilty verdicts were handed down despite the fact that the charter of the specific system concerned in the case, the Renater network between academic and scientific institutions in France, banned private or non-professional use of resources.
But the court affirmed that this ban (which in any case was not being enforced at the time at ESPCI) did not negate the right to private correspondence.

Before the court of appeal in 2001, the three guilty parties resorted to a broader claim in attempting to overturn their convictions by asserting that network administrators should have unrestricted rights to read the contents of user e-mail in order to detect viruses and deal with security threats to networks. However, when the system administrator on trial, Francoise Virieux, was asked how reading the contents of user e-mail could help network
security, she had no reply. The court of appeal finally dismissed this defence, ruling that security issues could not justify sereptitious e-mail surveillance (at the very least, the user should be informed if any security issues required any intrusion into their correspondence). The court of appeals further noted that in this case Virieux and Fermigier, acting as system administrators,
were not only spying on Tareq AlBaho's e-mail, but were also systematically sending copies of all his correspondence to Herrmann, and there could be no justification for that.

None of the three convicted parties chose to appeal to the cour de cassation.

On the levels of student rights and academic ethics, the AlBaho case provides the only known case where a complaint to criminal prosecutors by a doctoral candidate resulted in successful criminal prosecutions of senior academic staff, including the supervisor of the doctoral candidate who made the original complaint. The case is especially unique given that the accused
academic staff had the full support of the hierarchy at their institute in first attempting to conceal and then defend their actions.

After the espionage on his email in January 1997, Dr. AlBaho was forced to abandon his doctoral work at ESPCI (he was 10 months away from submitting and defending his thesis). Subsequent letters addressed by him to the head of ESPCI at the time, Nobel laureate professor Pierre-Gilles de Gennes, and requesting a peaceful resolution to the dispute, received no reply. Finally, when Dr. AlBaho succeeded in seeking the intervention of the senior Paris politician, Georges Sarre, De Gennes replied and alleged that Dr. AlBaho's "re-inscription" had been denied. In fact De Gennes had fabricated a bogus administrative procedure to try and cover up what had taken place. At that point Tareq AlBaho filed criminal charges with the public prosecutor in Paris and the subsequent police investigation uncovered the truth.

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