“Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
— attributed to Benjamin Franklin (1706–1790), printer, publisher, writer, naturalist, humanist, inventor, American abolitionist, and politician.

Pavel Durov, CEO of Telegram and a French citizen, was arrested at Le Bourget airport on Saturday, August 24, 2024, and subsequently indicted for at least ten offenses cited in the introductory indictment by French investigating judges.

The near-total absence of response from Telegram to judicial requisitions for many months prompted the Prosecutor of the Republic, Laure Beccuau, to take courageous action against the media CEO by invoking Article 323-3-2 of the penal code, which criminalizes platform providers who “knowingly allow the transfer of products, content, or services that are transferred, offered, acquired, or held that are manifestly unlawful.”

So, first of all, it is the ‘refusal to communicate at the request of the authorised authorities’, in other words Pavel Durov’s failure to cooperate, then his failure to declare the encryption methods used by Telegram to the ANSSI and, finally, his possible complicity in the organised distribution of images of child pornography (and other complicity) that are the subject of the French courts’ accusations against the Dubai-based company.

1.A Libertarian “Under Requisitions from the Authorized Authorities”: The Oxymoron of the 19th Century

Let us return to the definition of libertarianism: “a set of theories that give absolute priority to freedom and natural rights, privileging freedom of choice, individualism, and voluntary association over other values such as authority, tradition, and equality.” Libertarians commonly view the state as a coercive, illegitimate, and (some would say) unnecessary (or even harmful) institution.

Indeed, Telegram, in defiance of European laws (and foreign equivalents—but not those of Dubai), proudly states in its Privacy Policy that it will only transmit the IP address and phone number of its users in the event of a court order related to terrorism.

Our Public Prosecutor’s position can only be welcomed: as libertarian as he may be, Pavel Durov cannot evade the rule of law, whether international, European, or French.

Yes, we recognise that international cooperation would have been a good thing. But there is nothing in our law, unless I am mistaken, nothing that prohibits judicial police officers from issuing requisitions to whomever they want.

The fact that a “visible majority” of libertarians, Californians, anarcho-capitalists (with Musk as their avatar alongside Trump) head the largest platforms does not exempt them from respecting national, regional, or international laws.

If not, bad science fiction movies (but good novels) will become reality: multinationals will decide according to their “whims”, reducing state institutions (in their essence and activity) to the bare minimum by putting them under the thumb of a few enlightened shareholders of sprawling companies.

Here, there is no point in criticizing our values (freedom—and equality!), our principles (respect for privacy—and therefore of our correspondence), or even our intellectual property rights.

The question that is intuitively raised (and necessary) is the age-old but necessary balance between the sovereignty of States and the rights of individuals.

2.Declared Cryptography, Annihilated Business Model?

“Secret exchanges use end-to-end encryption, which means we can’t leak data.” This is Telegram’s business model.

A business model made even clearer when the company states: “To protect data not covered by end-to-end encryption, Telegram relies on a distributed infrastructure. Data exchanged in the cloud is stored in several data centres around the world, controlled by different legal entities in different jurisdictions. The corresponding decryption keys are divided into several parts and are never kept in the same place as the data they protect. As a result, several legal rulings from different jurisdictions are required to force us to hand over data.”

The question of encryption keys and thus user data is the second point of friction between the right to encryption and the benefit of its use, “but also, incidentally, privacy, the confidentiality of communications, the secrecy of journalistic sources and freedom of communication. At a time when the digital age is trivialising the surveillance society, this right has become a necessity to guarantee fundamental freedoms in the face of the State’s potential for arbitrary action. In 2015, the Parliamentary Assembly of the Council of Europe pointed out that ‘until States agree to set limits on the mass surveillance programmes carried out by their intelligence agencies, generalised encryption aimed at strengthening privacy is the most effective fallback solution to enable people to protect their data’. the confidentiality of communications, journalistic sources, and freedom of communication. While the digital age normalizes a surveillance society, this right has become essential to guarantee fundamental freedoms against the potential for state arbitrariness. In 2015, the Parliamentary Assembly of the Council of Europe stated that, “until states agree to set limits on the mass surveillance programs conducted by their intelligence agencies, generalized encryption aimed at enhancing privacy is the most effective fallback solution to allow people to protect their data.”

Access to Telegram’s encrypted data, and by extension to all blockchains, is therefore at risk. This could undermine, by a domino effect, a large number of communication services in some territories but not in others, creating legal risks for users and necessitating an army of lawyers in each jurisdiction.

But isn’t this a long-recognised problem for the Internet?

Only an international approach, grounded in fundamental rights, can adequately address these questions, which are often applied in a purely territorial manner to networks that are themselves extra-territorial.

3.Complicity, Moderation: A Flexible Law…

Unless I am mistaken, the law is clear on this point: hosting providers are not civilly or criminally liable for the content they host unless the illegal content has been brought to their attention and they have failed to take adequate measures to make the data, content, transactions, or services unavailable (French Law No. 2004-575 of June 21, 2004, on Trust in the Digital Economy). 

Accordingly, the lack of moderation of which the platform is accused in this case can only relate to publicly accessible content, i.e. content published on Telegram’s public channels or widely accessible in group conversations. For Telegram to be aware of the illegality of certain messages, they must therefore be public to be notified by third parties.

We return to the difficult balance mentioned earlier.

Thus, the prosecutor’s office has not relied on the European Digital Services Act (DSA). Telegram is not currently considered a “very large platform” (we should also question the thresholds set by the DSA and the discussions that led to them).

The DSA confirms the non-existence of a general obligation to monitor content but reinforces obligations for platforms: the obligation to respond to injunctions to act against illegal content (Art. 9), notification of illegal content (Art. 16), and notification of suspected criminal offenses (Art. 18). Very large platforms (those with more than 45 million users in the EU) must implement reasonable, proportionate, and effective mitigation measures to avoid the risks inherent in their tools, including the proliferation of illegal content (Articles 34 and 35).

We believe that the laxity once shown towards platforms, which is less anachronistic today, is leading to a ‘takeover’ by managers who are openly opposed to the law.

In the absence of precise information on the case, we quickly need to step back.

The fact remains that, in the eyes of many, Telegram is unsecured, centralised and in the hands of an opaque company. 

But we must be careful not to seek revenge at any cost by applying the rules of law disproportionately.

Liberty and security, as Benjamin Franklin pointed out…

Benjamin Martin Tardivat
Lawyer