Arrest Of Telegram’s Pavel Durov Raises Questions, But The Answers May Not Be Known For A While

Legal Issues

from the let's-not-jump-to-conclusions-either-way dept

There’s plenty of news flying around over the past few days after it was reported on Saturday that Pavel Durov, the founder and CEO of Telegram, had been arrested at Bourget airport in France after taking his private plane there from Azerbaijan. Durov, who got a French citizenship in 2021 apparently knew that there was a risk he might be arrested, but chose to go anyway.

The reporting on why he was arrested has been somewhat vague, to the point that it could be hyped up nonsense, or it could actually be legit. Initial reports claimed that he was arrested over a “lack of moderation” but other reports suggested potentially more serious claims around drug trafficking, terrorism, and CSAM.

France’s OFMIN, an office tasked with preventing violence against minors, had issued an arrest warrant for Durov in a preliminary investigation into alleged offences including fraud, drug trafficking, cyberbullying, organised crime and promotion of terrorism, one of the sources said.

Durov is accused of failing to take action to curb the criminal use of his platform.

“Enough of Telegram’s impunity,” said one of the investigators, adding they were surprised Durov came to Paris knowing he was a wanted man.

The problem is, without more details, we have no idea what is actually being charged and what his alleged responsibility is. After all, we’ve seen other cases where people have been charged with sex trafficking, when the reality was that was just how law enforcement spun a refusal to hand over data on users.

On top of that, leaping to criminal charges against an exec over civil penalties for a company… seems strange. For that to make any sense, someone should need to show actual criminal behavior by Durov, and not just “his service hosted bad stuff.”

The head of OFMIN, the French police agency that issued the warrant, posted to LinkedIn (of all places) that: “At the heart of this issue is the lack of moderation and cooperation of the platform (which has nearly 1 billion users), particularly in the fight against paedophilia.” Again, that is frightfully unclear. Is it just that Telegram wasn’t doing enough to fight CSAM? And if so, what “lack of moderation and cooperation” is enough? Because lots of websites are accused (often unfairly) of not doing enough in the fight against CSAM. Or is there something more?

And if it was just that they weren’t “cooperating” does it make sense to jump straight to criminal charges against the CEO, rather than penalties and fines for the company?

One thing, which I’ve talked about on the Ctrl-Alt-Speech podcast a few times, is how often Telegram comes up in discussions of content moderation and bad behavior, but politicians kind of wave it off as untouchable. Telegram had claimed to be under the threshold that would cause it to be registered as a “Very Large Online Platform” (VLOP) in the EU, and EU officials seemed to buy that claim.

But the numbers were still quite close (a claimed 41 million EU users, when the threshold is 45 million). And even if you’re not a VLOP, there were some requirements for smaller platforms, and it was unclear if Telegram was even remotely concerned with complying.

On top of that there were plenty of stories of bad behavior across social media first being planned on Telegram. The most recent example was the riots in the UK. While lots of people talked about misinformation on ExTwitter that contributed to that, much of that content originated on Telegram.

But, hosting bad behavior alone shouldn’t lead to criminal charges. Even ignoring law enforcement demands seems like it should lead to civil penalties before reaching criminal charges. That’s why I’m really hoping that there are more details here that justify the arrest. Without the details, though, it’s really difficult to know if this is an attack on free speech, or legitimate charges over actual criminal behavior.

I know that many people are leaping to conclusions one way or the other, but until we know the details, everyone’s guessing.

Earlier this year, Durov had given a surprising and rare interview with the Financial Times, where he actually talked about some of the effort (or lack thereof?) that Telegram puts into dealing with criminal behavior on the platform:

Durov said Telegram planned to improve its moderation processes this year as multiple global elections unfold and “deploy AI-related mechanisms to address potential issues”.

But “unless they cross red lines, I don’t think that we should be policing people in the way they express themselves”, said Durov. “I believe in the competition of ideas. I believe that any idea should be challenged . . . Otherwise, we can quickly degrade into authoritarianism.”

That same interview noted that the company only had 50 full time employees, though some reports have suggested it did have some other outsourced moderators. But in general it took a pretty hands off approach. That alone should never lead to criminal charges, though.

Also, there are different parts to Telegram’s service. There are the various channels, which act as sort of semi-public “groups” around certain topics. That part is more like social media communities. But there is also parts that are more about person-to-person communication, which the company has long insisted is end-to-end encryption, though many people have doubted the security of it, since Telegram does not reveal how it works.

On top of that, the “encrypted” messaging is not enabled by default, only works in one-to-one communications (any group messaging is unencrypted) and is quite hard to actually turn on. In other words, the vast, vast, vast majority of content on Telegram is not encrypted and can be seen by the company.

So, there are big questions about whether or not the charges against him relate to the more social media style content, or the (supposedly) encrypted communications part.

On top of that, there’s the Russia question in all of this. Telegram was based in Dubai, and part of the reason for that was that the Russian-born Durov was effectively forced to flee Russia and sell his former company, VK (basically a Russian clone of Facebook that was quite successful), after refusing to remove some content that the Kremlin didn’t like.

However, more recently, there have been claims that the Russian government has access to private Telgram communications, and Russian officials have said that the company “cooperates with Russian law enforcement.” And the response to Durov’s arrest from Russian officials suggest that they’re not happy about the arrest. While the Kremlin itself has been somewhat cautious in its public response, Russian media has been condemning the arrest, and various politicians have been calling for the French to release Durov.

The other interesting point is how central Telegram has been to Russia’s war in Ukraine, for both sides.

Of course, Europol has also said that Telegram cooperates with its request for dealing with terrorism online. And other reports have talked about Telegram cooperating with German officials and handing over data on users.

Combine all that and, basically, at this point, no one really knows what’s going on. It’s possible that Telegram cooperated on some law enforcement efforts and didn’t on others. It’s possible that it had good reasons to cooperate or not cooperate. It’s possible the team got overwhelmed. But it’s also possible that it just said “fuck it” and decided to ignore legal demands because they didn’t care.

As of right now, we just don’t know.

It sounds potentially worrisome, because if it’s really just “well, they refused to take down what we wanted,” that would be a dangerous attack on free speech. But if it’s “Durov himself was actively involved in the creation of and the sharing of illegal content,” then it could be trickier. And there’s a wide spectrum in between.

I will note that, over on Twitter, Elon’s fans are insisting that this is a test run before officials arrest Elon, but that seems ridiculously unlikely.

Also, I have to remind folks that a little over two decades ago, France also put out an arrest warrant on Yahoo CEO Tim Koogle, charging him as a war criminal, because Yahoo’s auction site in the US (notably, not the French version) allowed people to sell Nazi memorabilia. Eventually he was acquitted. You would hope in the two decades since then that officials would be a bit more sophisticated about this stuff, but at this moment, it’s just not clear at all.

Filed Under: arrest, content moderation, criminal liability, france, intermediary liabilty, pavel durov
Companies: telegram