The Durov/Telegram case — what does an arrest at a French airport mean for the future of free speech?

1 Sep 2024

The murky legal matter of Pavel Durov and Telegram could end up setting a precedent of sorts for moderation of digital content.

Last Saturday a guy named Pavel Durov was arrested at a French airport. Most of the world had never heard of him but within days he was front-page news everywhere, including in The Wall Street Journal and The New York Times. This story is stuffed with intrigue, thrills, crime and the great debate around freedom of speech. It has many sides – from the startlingly handsome mystery man who may be a hero or a villain, to the matter of culpability and accountability for some of the worst crimes imaginable, to the millennia-old tension between the individual and the state, to the disruption of ongoing wars.

Let’s start with the human interest angle, seemingly made for TV.

Pavel Durov is the founder of the messaging app Telegram, which looks a bit like WhatsApp and does much the same thing, at least superficially. It has 900 million users, including me. I joined a few years ago, as did many others, because it promised greater security than WhatsApp, which was not very secure back then (now fixed). How secure is Telegram? Well, less than most people think, but we’ll get to that.

Mr Durov’s life story is now a matter of frenzied interest – his startling good looks, his ripped body, his much-Instagrammed immersions into freezing water, his multiple passports and the rumours that he has fathered 100 children all adding to his mystique.

Durov, now 40, was born in Russia. In 2016 he built a massively successful FaceBook lookalike called VKontakte, which made him as famous in Russia as Zuckerberg is in the US. But he pissed off Vladimir Putin, who demanded oversight and editorial control over posts critical of the government. Durov refused, flipped him the bird (quite literally – there is a photo) and fled Russia.

The deeper implications of this whole affair are even more fascinating and have potentially more impact on the rest of us.

He was so profoundly disturbed by this attempted encroachment of the state on free speech that he developed Telegram, which promised end-to-end encrypted messaging for its users. The messages between individual participants are never in “cleartext” anywhere in transit from sender to the recipient. Telegram claims that it too cannot see person-to-person messages, making them surveillance proof. This is a huge selling point.

The app is also well known for enabling groups of common interest of any size to assemble and chat with each other. It is here that their security architecture becomes more penetrable. In order to handle group chats (as opposed to single person-to-person communications) efficiently, the messages are stored on Telegram’s central servers, which act as a relay point to send messages on to each group participant. Anyone can see group messages if they can get access to a group or, more pointedly, if they can hack into the central servers.

This includes, presumably, various law enforcement authorities, some of which have apparently eavesdropped on terrible conversations taking place in Telegram groups – child sex abuse forums being foremost among them, but including groups concerned with arms, drugs and other foul crimes. So, they reached out to Durov to assist.

Durov, like Elon Musk, is a free-speech absolutist. He was, in the words of the investigators, “extremely uncooperative”. He didn’t even bother to return calls and emails. This, unsurprisingly, pissed some people off, especially the French authorities, who have strict content moderation laws and had clearly been amassing evidence for some time.

They arrested him last week when he landed on French soil (he holds French citizenship, having achieved this status with the help of some very smart lawyers and the application of an ancient French law). The arrest itself was a shock. It is vanishingly rare for authorities to go after a CEO in cases like these – it is the corporation that is usually the target. (One wonders whether social media platform CEOs will have second thoughts about travelling to France, or indeed, travelling anywhere at all.)

Read more: Pavel Durov’s arrest may make Musk and Zuckerberg rethink their travel plans

Anyway, that’s where the story stands. Durov is facing numerous charges, including complicity in managing an online platform that facilitates illicit transactions by organised groups, failure to curb extremist and illegal content on Telegram and refusal to share documents requested by authorities.

No one knows whether Durov or the state will eventually emerge victorious, because this is murky legal territory and the evidence is not yet public. But there is much more riding on this case than meets the eye.

The deeper implications of this whole affair are even more fascinating and have potentially more impact on the rest of us. The internet was designed to be borderless. Countries paid little notice at the outset because the internet was small until, suddenly, it was everywhere as the preferred warehouse and transmission technology for all information. Countries rightly demand obedience to their laws by people within their borders but what happens when a technology is borderless? Whose laws apply, who judges breaches and how can sanctions be applied?

Countries have started to act. China developed their “Great Firewall” to keep their citizens uninformed, and similar measures have been applied by Middle Eastern autocracies worried about their citizens becoming infected by the apostasy and loose morals of the West. And now there is Brazil, which has just banned Musk’s X in a fit of pique provoked by some content critical of its government’s electoral process. Countries, no matter what they claim, don’t really love all corners of the internet; it is like a wilful teenager, it cannot be controlled.

As the internet has matured, legislation has struggled to define it. Are cellphone operators responsible for crimes plotted by users of their network? No, they provide a utility, like a post office, and they are immune from prosecution. They do not have to moderate content moving across their infrastructure, indeed, it would be illegal to do so. But the internet has proven to be a different kind of beast, and so new laws and regulations have taken shape over the past few decades.

For instance, in the US, platforms that use the rails of the internet to deliver third party content have long been considered immune from responsibility for the legality of that content under a 1996 law usually called Section 230. In short, it was decided that platform providers were not publishers. Here is the key phrase in the law:

“no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

It is possible, perhaps even likely, that there is much more at stake with the arrest of Durov than the takeout of a bunch of nasty street criminals.

But now that definition is looking less robust in the face of new lawsuits brought by, for example, people whose children have lost their lives in a TikTok-originated dare called “blackout” (the details of which are too depressing to repeat here).

What we have is a chaotic confusion of competing interests and the debate which has been ongoing for nearly 30 years. When does the state have a right to insist on reasonable moderation of digital content? When does the state have a right to demand access to information which may help them catch the bad guys? When is free speech less than free? When is it downright dangerous? To what extent should we trade our freedom for security?

These are not new questions, to be sure; they sit at the heart of political philosophy. But the Durov/Telegram case could end up setting a precedent of sorts and emotions are running high on both sides (people like Musk and Peter Thiel are apoplectic about Durov’s arrest).

There is a coda to this story, at least as it stands right now. Apparently, the entire Russian army communicates over Telegram. It is possible, perhaps even likely, that there is much more at stake with the arrest of Durov than the takeout of a bunch of nasty street criminals. Perhaps tilting the scales in a proxy superpower war is the really big prize. There are rumours that the Russian army is in a panic – all their historical comms sit on Telegram servers, which would make for some incomparable intel for the West, with potentially catastrophic consequences for Russia.

It is difficult to know what position to take, if one were forced to choose between unfettered freedom and selected surveillance. Earlier in my life, I would have rooted for unadulterated freedom of speech but, given the ease with which the internet has been exploited by a seemingly endless parade of miscreants, I’d rather give up some freedoms and allow some very careful oversight of information where necessary.

Not a popular view, and I know there be dragons there.

Even so… DM

Steven Boykey Sidley is a professor of practice at JBS, University of Johannesburg. His new book, It’s Mine: How the Crypto Industry is Redefining Ownership, is published by Maverick451 in South Africa and Legend Times Group in the UK/EU, available now.

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