Decoding the message in the Telegram case

In late August, Telegram founder Pavel Durov was arrested and charged by French authorities, kicking off a tense geopolitical game that will shape how governments deal with tech giants in the future.

Durov was arrested as part of an investigation by a cybercrime unit of the Paris Public Prosecutor’s Office into criminal activity on the messaging app Telegram. The tech mogul is not accused of carrying out the various forms of organized crime (including drug trafficking, arms trafficking, and the distribution of child abuse material) himself; rather, the charges are based on the premise that Durov may have been complicit in a wide range of these crimes facilitated by his platform.

In the French legal system, which tends to favor prosecution in organized crime cases, the key to his defense will be to prove that there was no intent, i.e., that he did not intentionally allow these crimes to take place on his platform. However, Durov was arrested for refusing to cooperate with French prosecutors’ demands for data and access, just as he has refused to comply with Russian state requests for years, leading him to leave Russia and move Telegram to the UAE, where the platform is apparently not subject to such demands. His refusal to comply with the French request for cooperation will not help his case.

Durov’s arrest is almost unbelievable, but also inevitable. In our age of omnipotent, international, and well-connected tech moguls promoting their own brand of free speech—which in some cases means allowing, or at least turning a blind eye to, the illegal activities taking place on their platforms—it was only a matter of time before one of them would face a day of reckoning from one legal system or another.

Developing positions

The arrest comes on the heels of the August 9 agreement on a new UN treaty on cybercrime, a process that has been in the works for two years, proposed by Russia and initially opposed by France (along with many other Western countries). In pushing for this new treaty, Russia wanted to gain greater access to data and evidence from Western tech companies. But the companies, backed by civil society and private sector actors, opposed the more authoritarian and invasive proposals that Russia included in the treaty.

The fact that this groundbreaking arrest was made not by Russia, but by French authorities, arresting the director of Russia’s most popular social networking platform, now based in the UAE, marks a potential change in the way global authorities police technology platforms where online criminal activity takes place.

The nature of Durov’s background and loyalties (he was born in Russia and holds Russian, Emirati, French and Saint Kitts and Nevis citizenship) has turned the usual arguments about internet freedom on their head. Russia and the UAE have portrayed the arrest as politically motivated, with support for Durov coming from across the political spectrum of Russian society. In the West, where Durov is less well-known, public reaction has been more muted, but he has received vocal support from Tesla tycoon Elon Musk and from sections of the online community in the US. In a further twist, the arrest has been praised by Iran’s Supreme Leader Ali Khamenei.

A new era?

There is no doubt that various forms of harmful organized crime are facilitated to varying degrees by the major social networks. Certain online platforms, such as EncroChat and SkyECC, are even known to offer customized services for criminal groups to discuss their activities. The crimes facilitated by online platforms vary widely, and the private sector is clearly not doing enough to keep its house in order. Many networks have signed up to various national and international agreements and codes of conduct, but Telegram has not, which does not help Durov’s case either.

The inability and unwillingness of networks to police their own platforms, and of states to agree internationally on how to do so and what constitutes crime, leads us inevitably to this point, where a national jurisdiction has taken unilateral action in what will become a major test case. Tech executives around the world are watching with bated breath, as are online rights activists, to see whether such actions can lead to state repression more generally.

The French legal system is truly independent of political influence, but the charges have huge political implications that are impossible to predict. It’s a Pandora’s box that could lead to broader state action against online platforms, and retaliation from Russia or others if they get the chance to target Western tech executives. It will also lead to pressure for equal treatment – ​​for example, how countries will respond if Mark Zuckerberg comes along – given the illegal activities on Meta’s platforms.

The case is also another reminder of the role of the UAE, and Dubai in particular, as a hub for platforms and individuals who facilitate organised crime. Durov is a beneficiary of an elite scheme that, since 2021, has allowed dual citizenship for those who bring significant investment and “special talent”. The case also raises questions for France about how Durov managed to obtain his French passport under another elite scheme, only to be arrested and banned from leaving the country.

But perhaps what the case highlights most is the lack of a global understanding or strategy to tackle organized crime facilitated by social networks, while upholding human rights and freedoms online. A delicate and controversial balance has been struck in the new UN cybercrime convention, but it has yet to enter into force and will take a long time to implement. What is certain, however, is that the fallout from the Telegram case will shape the way states respond to internet policing in the future.