Last week’s dramatic arrest of Pavel Durov, the self-styled libertarian founder of Telegram, has sent shockwaves throughout the tech and free expression communities. Durov’s arrest in France represents the first time a tech founder has been personally targeted for harbouring illegal content on their platform.
There is no suggestion that Durov himself was personally engaged in unlawful conduct. France’s investigation—and the proposition that platform owners can face criminal jeopardy for the mere fact of providing encryption services—threatens to create a hostile precedent for both free expression generally and the viability of communicating without government surveillance specifically.
Telegram allows both encrypted and unencrypted as well as open channels. Unlike Signal or Apple messages, end-to-end encryption for private chats is not the default setting on Telegram and users must opt-in to a “secret chat” feature to enable it. The material freely flowing through the app’s public channels is not for the faint of heart. Hamas openly broadcasts celebrations of its terror in daily updates.
Out of curiosity, I began following the channel of Aleksandr Dugin, who has been described as Putin’s brain, in 2022 after Russia invaded Ukraine. I left the channel after a few weeks of being avalanched with “Z” pro-regime propaganda, memes lionizing Putin, and anti-NATO screeds.
France 24 reported that its investigation of Durov concerns suspected “complicity” in various crimes including running an online platform that allows illicit transactions, child pornography, drug trafficking, and fraud, as well as the refusal to communicate information to authorities, money laundering, and providing cryptographic services to criminals.
In response, Telegram claimed that the company abides by European Union laws and its moderation was “within industry standards and constantly improving.” In a public statement, it said, “it is absurd to claim that a platform or its owner are responsible for abuse of that platform.”
The basket of charges that Durov has been smacked with, though, appears to be a classic motte-and-bailey. Allowing child sexual exploitation materials and drug trafficking networks to flourish—or refusing to cooperate with law enforcement on properly specified warrants—should appropriately attract legal sanctions, although the normal way of enforcing them has been through “jawboning” platforms, threatening them with fines or further regulation for non-cooperation.
Even section 230 of the United States’ Communications Decency Act, which was designed to allow tech platforms to operate freely without the threat of liability for user conduct, does not shield platforms from liability for facilitating criminal conduct. If France is alleging that there are specific instances of crimes which law enforcement has produced proper warrants for and been stonewalled by Telegram, they should say so in more specific terms. And even if this is the case, it doesn’t justify the dramatic display of state coercion in arresting Durov and holding him in custody.
