Photo by Dima Solomin on Unsplash
The Internet has been abuzz with the arrest in France of Telegram’s creator Pavel Durov. Details are still sketchy, but French judiciary authorities have issued a press release with some of the charges, these include administering an online platform used to conduct illegal activities such as money laundering, organised crime, child abuse images, and drug trafficking. The charges also include more dubious claims, such as provision of cryptology services, and the importation of such services without previous authorisation. It is those final three charges, as well as a growing outcry of imprisoning what many see as a stalwart defender of online freedom of speech, which have been met by online outrage, at least in many of my online circles.
It is not the intention of this blog post to get into a debate about Telegram, Durov, or the specific charges. I have no idea of the strength of the case against him, and therefore I will not speculate on such things. But what is clear is that the arrest has unearthed three old debates on Internet regulation that still have not been resolved satisfactorily in every jurisdiction.
1. Access to encrypted communications
The debate over Internet regulation, particularly concerning law enforcement’s access to encrypted communications, is a complex and contentious issue with significant implications for privacy, security, and human rights. The core of the debate centres on the balance between ensuring national security and protecting individual privacy. Law enforcement agencies argue that access to encrypted communications is essential for combating serious crimes such as terrorism, child exploitation, and organised crime. Encryption, by its nature, secures digital communications, making it nearly impossible for unauthorised parties, including law enforcement, to access the content without a key. However, this same feature that protects privacy also creates challenges for law enforcement agencies attempting to investigate and prevent criminal activities conducted online. So this debate has often been framed as one of balance between security and social liberties, often sprinkled with concern over children, drug traffic, and/or terrorism. “Won’t anyone think of the children”?
Internationally, the regulatory approaches to this issue vary. In the US the debate has been particularly fierce, with high-profile cases such as the FBI’s attempt to compel Apple to unlock an iPhone involved in the San Bernardino terrorist attack. US law enforcement agencies have pushed for legal frameworks that would mandate companies to provide them with access to encrypted communications when necessary, often referred to as a “backdoor.” However, technology companies and privacy advocates argue that creating such backdoors would undermine overall security, as they could be exploited by malicious actors, potentially leading to widespread data breaches.
In Europe, the approach has been somewhat different, although similarly contentious. The European Union has seen proposals that encourage, but do not mandate, cooperation between tech companies and law enforcement to provide access to encrypted communications. The European Commission has explored various mechanisms to achieve this, including the potential development of lawful access tools that do not compromise the overall security of encryption. Countries like the UK have adopted more aggressive stances with legislation such as the Investigatory Powers Act, which grants broad surveillance powers to the government, including the potential to demand companies bypass encryption. France also has in place such legislation.
In authoritarian regimes, the debate over encryption and law enforcement access is less about balancing privacy and security and more about control. Countries like China and Russia have implemented stringent regulations that require companies to provide the government with access to communications and data. In these contexts, the primary concern is not the prevention of crime but the suppression of dissent and the monitoring of political opposition. These practices have raised significant concerns about human rights abuses and the global implications of eroding encryption standards.
The last three charges against Durov touch on this point specifically, and it is likely to remain a contentious issue, with civil liberties groups and advocates crying foul.
2. Criminal liability by platform owners
The other contentious issue highlighted by this case is the fact that Durov is being held criminally liable for actions committed in his platform. This is another old Internet regulation debate centred around just how far should liability go, and rehashes the issue of control. For the most part this has been a civil liability debate, where there has been a clear push towards creating a regime that limits a platform’s liability over actions committed by its users: section 230 CDA, the E-commerce Directive, and most recently the Digital Services Act (DSA), all have provisions that try to reduce liability by platforms.
But what about criminal liability? Here the issue is a bit more contentious. This debate has gained international prominence as platforms like social media networks, messaging services, and other online communities have become central to modern communication, but also to the propagation of illegal activities ranging from hate speech and misinformation to trafficking and terrorism, many of these are not only illegal, but subject to criminal liability. So while the platforms may be protected somewhat from civil liability, if criminal activity is rampant, the argument has been that the owners and operators should suffer criminal consequences for allowing these to happen in their servers. A common argument used is that providing a facility to commit criminal actions can be in itself subject to criminal punishment.
Proponents of holding platform leaders criminally liable argue that these individuals, by virtue of their leadership positions, have a duty to ensure that their platforms are not used for unlawful purposes. They contend that platforms should not be neutral entities but rather active participants in curbing illegal activities within their digital spaces. This perspective is rooted in the belief that if platform leaders are held accountable, it will incentivise them to implement more robust content moderation practices and cooperate more fully with law enforcement agencies. The argument often draws on analogies to traditional industries, where corporate executives can be held liable for crimes committed under their watch if they are found to have been negligent or complicit.
In contrast, one could argue that imposing criminal liability on platform heads is both impractical and counterproductive as the scale and complexity of modern platforms make it impossible for any single individual to effectively monitor all content, and that criminal liability would stifle innovation and free expression. Furthermore, there is concern that such measures could lead to over-censorship, as platforms may become overly cautious in removing content to avoid liability, thereby infringing on users’ rights to free speech.
While criminal liability of this nature has been rare, it has happened in the past, for example, in 2012 YouTube executives were arrested in Brazil over failure to remove content mocking political candidates, which serves to prove that this issue is often quite political.
3. The role of the state in online spaces
Finally, I’ve noticed a resurgence of the old debates regarding state intervention in online spaces. One of the earliest Internet regulation theories was cyber-libertarianism (encapsulated by Barlow’s Declaration of Independence of Cyberspace). This is the idea that the Internet is unique, and as such it should not be subject to the same type of state regulation as physical space. While the years were not kind to this theory, it still has proponents, and Durov’s arrest has resulted in a rehash of the fundamental conflict on the extent to which governments should regulate online activities and the implications of such regulation for freedom, security, and innovation. Let’s call these opossing views cyber-control and cyber-libertarianism.
Proponents of cyber-control argue that state regulation of the Internet is necessary to ensure national security, protect public order, and uphold societal values. From this perspective, the Internet, like any other space, requires oversight to prevent and address crimes such as terrorism, cyberbullying, hate speech, and the spread of misinformation. Governments that favour cyber control often implement regulations that mandate content monitoring, data localization, and censorship of content deemed harmful or subversive. Authoritarian regimes have traditionally epitomise this approach, where the state exerts tight control over the Internet through extensive censorship, surveillance, and the repression of online dissent. Cyber-control argues that such measures are essential to protect national sovereignty and maintain social stability in an increasingly interconnected world.
On the other side of the debate is cyber-libertarianism, which champions minimal state intervention in the digital realm. Cyber-libertarians view the Internet as a bastion of free expression, innovation, and individual empowerment. They argue that excessive government regulation stifles creativity, restricts access to information, and infringes on fundamental rights, particularly the right to free speech. The Internet, in their view, should be a global, open space where information flows freely and individuals have the autonomy to make their own choices without government interference. Cyber-libertarians often point to the success of the Internet as a driver of economic growth and social change, attributing this success to its largely unregulated nature. They warn that state regulation could lead to a slippery slope of censorship, surveillance, and the erosion of civil liberties, particularly in countries with weak democratic institutions.
Concluding
As mentioned I haven’t made up my mind with regard to Durov’s arrest, but this was somewhat inevitable. Telegram has been famous as one of the most prominent “everything goes” havens online, with reports of rampant criminal activity taken place there. It was only a matter of time until a country would try to exercise control over it, I’m surprised that people are surprised that this happened. As mentioned above, the arrest is just a part of a much larger debate regarding the Internet, and it is likely to open quite a few discussions in that front.
Personally I’ve never used Telegram, I detest synchronous communication tools, why would anyone want to be glued to their phone all the time? I will communicate with people as God intended, asynchronously. Unless the burning bush was synchronous communication. I should rethink this line of thought.
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