The Electronic Frontier Foundation has released a statement on the situation with Telegram co-founder, Pavel Durov.
Last month, we reported on the arrest of Telegram co-founder, Pavel Durov. The arrest was bizarre and full of unknowns, but some of the possibilities are quite terrifying. For instance, if Durov was arrested for failing to hand out all personal information to French authorities, that is, indeed, deeply problematic on a number of levels.
French authorities, for their part, did little to answer any of the major questions around the nature of Durov’s arrest. Instead, the information they did release just threw out a bunch of vague statements while answering pretty much nothing.
In the absence of facts, mainstream media decided to push a whole bunch of conspiracy theories, saying, among other things, that Durov is guilty of terrorism and the publication of illegal content posted by others on the platform. If true, then that would be a considerable assault on freedom of expression given that it’s those who publish said material that should be guilty, not the owner of the platform. Another conspiracy theory we saw published by mainstream media is that Facebook has somehow solved all of it’s moderation problems and all the bad actors had apparently come together, held a meeting, and voted to use Telegram as their main launching point for all sorts of nefarious purposes. That, of course, was always laughable on multiple fronts, but it was one of many conspiracy theories published on mainstream media outlets if you can believe it.
Meanwhile, back in the real world, there has been few developments in the arrest, though others are chiming in. The Electronic Frontier Foundation (EFF) has released a statement saying that they are monitoring the situation closely. Like other experts and observers, they are just as in the dark as to what the heck the arrest was all about in the first place. From the EFF:
We know very little about the Telegram-related charges, making it difficult to draw conclusions about how serious a threat this investigation poses to privacy, security, or freedom of expression on Telegram, or on online services more broadly. But it has the potential to be quite serious. EFF is monitoring the situation closely.
There appear to be three categories of Telegram-related charges:
- First is the charge based on “the refusal to communicate upon request from authorized authorities, the information or documents necessary for the implementation and operation of legally authorized interceptions.” This seems to indicate that the French authorities sought Telegram’s assistance to intercept communications on Telegram.
- The second set of charges relate to “complicité” with crimes that were committed in some respect on or through Telegram. These charges specify “organized distribution of images of minors with a pedopornographic nature, drug trafficking, organized fraud, and conspiracy to commit crimes or offenses,” and “money laundering of crimes or offenses in an organized group.”
- The third set of charges all relate to Telegram’s failure to file a declaration required of those who import a cryptographic system into France.
Now we are left to speculate.
It is possible that all of the charges derive from “the failure to communicate.” French authorities may be claiming that Durov is complicit with criminals because Telegram refused to facilitate the “legally authorized interceptions.” Similarly, the charges connected to the failure to file the encryption declaration likely also derive from the “legally authorized interceptions” being encrypted. France very likely knew for many years that Telegram had not filed the required declarations regarding their encryption, yet they were not previously charged for that omission.
Refusal to cooperate with a valid legal order for assistance with an interception could be similarly prosecuted in most international legal systems, including the United States. EFF has frequently contested the validity of such orders and gag orders associated with them, and have urged services to contest them in courts and pursue all appeals. But once such orders have been finally validated by courts, they must be complied with. It is a more difficult situation in other situations such as where the nation lacks a properly functioning judiciary or there is an absence of due process, such as China or Saudi Arabia.
In addition to the refusal to cooperate with the interception, it seems likely that the complicité charges also, or instead, relate to Telegram’s failure to remove posts advancing crimes upon request or knowledge. Specifically, the charges of complicity in “the administration of an online platform to facilitate an illegal transaction” and “organized distribution of images of minors with a pedopornographic nature, drug trafficking,[and] organized fraud,” could likely be based on not depublishing posts. An initial statement by Ofmin, the French agency established to investigate threats to child safety online, referred to “lack of moderation” as being at the heart of their investigation. Under French law, Article 323-3-2, it is a crime to knowingly allow the distribution of illegal content or provision of illegal services, or to facilitate payments for either.
In particular, this potential “lack of moderation” liability bears watching. If Durov is prosecuted because Telegram simply inadequately removed offending content from the site that it is generally aware of, that could expose most every other online platform to similar liability. It would also be concerning, though more in line with existing law, if the charges relate to an affirmative refusal to address specific posts or accounts, rather than a generalized awareness. And both of these situations are much different from one in which France has evidence that Durov was more directly involved with those using Telegram for criminal purposes. Moreover, France will likely have to prove that Durov himself committed each of these offenses, and not Telegram itself or others at the company.
This is pretty much in line with what I, and other’s, have thought all along about this. If authorities are sending a whole bunch of take down demands for allegedly illegal content, and Telegram was telling them to pound sand, then that makes the situation complicated. If, however, French authorities were issuing a stack of takedowns and Telegram determined that not all of them were worth complying with, and that’s what sparked the arrest, then that would raise questions about freedom of expression. It would be even worse if French authorities were finding something that they didn’t like and decided to arrest Durov based on their own personal opinions of what is and is not illegal.
The unfortunate nature of what actual information is out there is that we really don’t know which situation we are in (or even if the situation is different even to that). That’s what made the French information release so frustrating because it simply didn’t address anything. It just threw out a list of vague charges and left it at that, leaving everyone to speculate.
Because of this, we don’t know if all of this is cause for serious concern or not. If it’s the worst case scenario that Telegram chose not to comply with absolutely every order or Telegram wasn’t even notified of the cause for concern and French authorities went straight to slapping on handcuffs on an otherwise innocent person, then it would be a serious attack on freedom of expression, plain and simple. This is why so many are monitoring the situation closely with concern, hoping more details will finally emerge that clarifies the situation.
