Speech Or Silence: If You See Something, Say Something...Or Else
Speech Or Silence: If You See Something, Say Something...Or Else
Pavel Durov Indicted For Not Informing On Telegram Users
According to the government of France, Pavel Durov is “complicit” in child sexual abuse, drug trafficking, human trafficking, and an untold number of other offenses.
French prosecutors indicted the chief executive of popular messaging service Telegram Wednesday on charges of complicity in the distribution of child sex abuse images, aiding organized crime and refusing lawful orders to give information to law enforcement.
Prosecutors charged Pavel Durov with multiple offenses after four days of questioning following his arrest at an airport near Paris, ordering him to put up a 5 million euro bond and barring him from leaving France.
According to the government of France, Pavel Durov is “complicit” in these crimes because he would not hand over user information to law enforcement agencies investigating these crimes. According to the government of France, Pavel Durov is complicit in these crimes because he put rights of privacy and free speech over some ephemeral “duty” to serve as thought police for the French government.
If found guilty at trial, Durov faces up to 10 years in prison and a €500,000 fine.
Consider for a moment the French government’s rationale: Pavel Durov is complict in crimes allegedly committed by users of the Telegram platform, because he would not spy or inform on Telegram users on behalf of the French government—or any government.
This is exactly the rationale that is being profferred by the French courts to the French people:
The Justice considers that the lack of moderation, cooperation with the forces of law and order and the tools offered by Telegram (disposable number, cryptocurrencies, etc.) makes it complicit in drug trafficking, paedo criminal offences and fraud.
Broadly speaking, the charges against Durov seem to fall into four general categories.
Firstly, Telegram’s founder has been charged with being complicit in storing and distributing CSAM content, facilitating drug trafficking and facilitating organized fraud and other illegal transactions.
•Second, the court claims that Telegram refuses to cooperate with law enforcement when they file a formal request for information or documents.
•Third, Durov faces several charges related to Telegram’s cryptographic features as they haven’t been formally declared or certified by French authorities. These seem to be minor offenses according to professor of law Florence G’sell.
•Fourth, Durov is accused of taking part in a “criminal association with a view to committing a crime or an offense punishable by 5 or more years of imprisonment”, as well as money laundering.
Moreover, based on how the wording of the indictments has been reported, the basis for these charges is that Durov is the CEO of Telegram.
The Centre for the Fight against Cybercrime (C3N) and the Anti-Fraud National Office (ONAF) have been involved in the investigation. In all, 12 charges have been filed against “a person unnamed” — a classic French judicial term to imply whoever is in charge of Telegram right now.
The sixth charge is the most vague:
A sixth charge on the prosecutor’s list is particularly hard to decipher. “Complicity — offering, selling or making available, without legitimate reason, equipment, tools, programs or data designed for or adapted to get access to and to damage the operation of an automated data processing system,” Prosecutor Laure Beccuau wrote.
This would appear to connect Durov to some measure of hacking or cybercrime activity, although the current reporting does not specify what.
This much is certain: The French government has been building this case against Pavel Durov for some time.
As I noted the other day, the challenge presented by Durov’s arrest and now indictment amounts to a collision between the Free Speech rights of all individuals and the police power of governent zealously intent on enforcing the law.
How should we apprehend the seemingly anodyne phrasings of “lack of moderation” and “insufficient moderation”? At what point—is there even a point—where permitting even noxious speech becomes an intolerable offense?
Nor is there any denying that social media platforms are used for a variety of activities which are not merely crimes under the law, but are absolute moral outrages.
Criminal investigation is an eternal point of collision between civil liberties and law enforcement, a conflict which is magnified by the ongoing use of social media platforms for inarguably illegal activity. It bears mentioning that Facebook has come under fire for allowing a literal slave trade to take place, with domestic servants from the Middle East and Northern Africa being “advertised” on Instagram as well as the main Facebook platform.
An undercover investigation by BBC News Arabic has found that domestic workers are being illegally bought and sold online in a booming black market.
Some of the trade has been carried out on Facebook-owned Instagram, where posts have been promoted via algorithm-boosted hashtags, and sales negotiated via private messages.
A talking point reiterated by the courts and by corporate media is that the lack of content moderation makes Telegram a preferred medium for exchanging (and, arguably, storing) child sexual abuse material among other illegal forms of content.
While X owner Elon Musk and others have decried the investigation of Durov as a challenge to hands-off content moderation, child safety advocates say Telegram permits more illegal activity, including abuse images, than any other major network. It has some 950 million total users and is especially popular in Russia, elsewhere in Eastern Europe and the Middle East.
The near-absolute privacy Durov affords Telegram users arguably has been a driving force behind its adoption worldwide.
Another reason was the change in the privacy policy of the WhatsApp messenger, which can now share user data with other Meta applications. The Telegram team, on the other hand, refuses to grant access to messages and user data, even upon government requests, except in cases where a user is suspected of terrorism.
It would seem that people—even those who do not break the law—are rather fond of the idea that Big Brother cannot watch them. It should surprise no one that those who do break the law have a similar desire to be free of prying eyes.
Nor can government claim any moral high ground regarding surveillance, or pretend that surveillance is only used for the “good” purposes of tamping out sexual predation, human trafficking, and similarly infamous crimes. Too often government has leveraged or sought to leverage surveillance in order to harass and intimidate political dissents.
Durov’s own life experience is itself a powerful testimony on the willingness of authoritarian regimes to make mere opposition government a “crime”, and to leverage law enforcement accordingly to harass and intimidate anyone even remotely connected to political dissident movements.
In early December 2011, mass protests started in Russia in the wake of State Duma elections. The rallies were principally organized and directed through private opposition groups on VKontakte. Federal Security Service (FSB) officials asked the management of the social networking service to block these groups, but Durov refused.
On December 11, members of an OMON squad knocked on the door of Durov’s apartment in St. Petersburg. There are no details in the film about this visit by security forces, but it is asserted that it was at this moment that Durov realized he would no longer work for VKontakte or live in Russia. On that day, he reflected on the necessity of having a secure channel of communication with his elder brother, Nikolai, one of the main developers of VKontakte, who had created the whole “engine” of the social media service. Three years later, Durov would indeed quit the company, leave Russia and launch Telegram.
With this as his personal experience regarding government oppression and censorship, it is not hard to fathom why Durov is a free speech absolutist with regards to Telegram. We do well to note that, at a time when Facebook and other social media platforms were accommodating government wishes to censor COVID-19 content, Durov refused to take down COVID content.
For example, during the COVID-19 pandemic, Telegram refused to remove fake posts about the coronavirus. Pavel Durov commented on this: “…we did not think it was our role to decide for our users what they should believe. […] In the 20 years of managing discussion platforms, I have noticed that conspiracy theories only get stronger every time moderators delete their content. Instead of putting an end to wrong ideas, censorship often complicates the fight against them. That’s why spreading the truth will always be a more effective strategy than engaging in censorship.”
For stances such as this, the French government calls Pavel Durov a criminal.
Howeover, we must not overlook that even Durov has mechanisms to report illegal and questionable content in public channels on Telegram.
Q: There's illegal content on Telegram. How do I take it down?
All Telegram chats and group chats are private amongst their participants. We do not process any requests related to them.
But sticker sets, channels, and bots on Telegram are publicly available. If you find sticker sets or bots on Telegram that you think are illegal, please ping us at abuse@telegram.org.
You can also use the 'report' buttons right inside our apps, see this post on our official @ISISwatch channel for details.
Note: If a scammer is pretending to be you, contact @NoToScam
Telegram also has a channel for publishing daily reports on content which is removed for violating either applicable law or Telegram terms of service.
One cannot say, therefore, that Durov is willing to tolerate without exception illegal and noxious content on Telegram. Where he is unwilling to moderate is in private one-on-one and group chats. Those are private and Durov does not wish to violate that privacy for any reason.
Could illegal conduct be taking place in those private chats? Absolutely. We can even concede that some does take place. Yet how is anyone, be they law enforcement officer or private citizen, to know in advance which private chats contain discussions or content of a criminal nature and which discussions do not? How could the “criminal” chats be filtered and monitored without surveilling and monitoring all chats?
Simply put, there is no capacity to use surveillance facilities with that level of precision and discrimination. It is not possible to evaluate content as criminal without evaluating all content. To spy on the criminals, Pavel Durov would have to spy on everybody.
Is there—should there be—a duty of care for social media platform operators that they should surveill and monitor private users and private group chats to seek out potentially illegal activity? The French government says there is such a duty of care
Pavel Durov apparently disagrees. I certainly disagree.
It is easy to point at CSAM and similar content, to point at drug deals, even to point to terrorism, and cry “Foul!”. It is easy to say that such activities are not merely criminal but categorically immoral and in every regard “wrong”. It is easy to demand that those who traffic in such content and engage in such activities be punished to the fullest extent the law allows.
It is easy to point to these things and demand justice because they are clearly wrong.
At the same time, it is easy to point to the clear victims of censorship and defend them. It is easy to say that government is wrong for silencing dissident voices, and that social media is wrong for playing along with government demands for censorship.
It is easy to argue that LinkedIn was wrong when they cancelled me at the end of 2021, and that they were belatedly right to reinstate me last fall.
It is easy to point to the case of Steve Kirsch, who was also banned from LinkedIn (I believe he is still banned). It is easy to point to Alex Berenson, whose Twitter access was revoked and is now the subject of a lawsuit.
It is easy to point to the case of Tulsi Gabbard, who has been subjected to intrusive and Stasi-like surveiilance by TSA for the thoughtcrime of opposing the Biden-Harris Administration.
It easy to point to such instances and lament the misuse—and abuse—both of government power and of the license to censor that Big Tech social media enjoys in this country.
It is less easy to acknowledge that the powers which government demands to pursue the noxious criminals are the same powers government has used to silence people such as Tulsi Gabbard, Alex Berenson, Steve Kirsch, and myself.
It is less easy to point to the noxious rhetoric of someone like Louis Farrakhan, or the intemperate and at times unhinged flippancy of Milo Yiannopoulos, and defend their right to speak their mind, no matter how offensive some might find their words.
It is less easy, yet we must defend such speech and such individuals, for there can be no Free Speech if that which is offensive is not protected with the same zeal as that which is accepted.
It is even less easy to defend a criminal’s rights of privacy and of Free Speech, and to accord their data and their information the same deference and confidentiality we ostensibly argue should be shown to every well-intentioned law-abiding citizen.
It is even less easy, yet we must defend that speech and those individuals as well. We must protect their right to privacy as well. We dare not treat them any differently in terms of their civil liberties as any other individual.
If we fail to accord even the most vile criminal the same rights of privacy and Free Speech as the most virtuous social justice advocate, by that failure we reject any presumption that any rights are fundamental or inalienable.
By that failure, we raise government up to be the moral arbiter of us all. That we simply must not do, not for any reason.
Fundamental rights are not rights which are open to debate. They are not rights which are conditioned upon behavior or membership in a particular class of aggrieved citizen. As John F. Kennedy said so powerfully in his 1961 inaugural address, “the rights of man come not from the generosity of the state but from the hand of God.” Fundamental rights have never been ours to give, and therefore they can never be ours to take away, not for any reason.
I do not know exactly what motivates Pavel Durov to refuse to comply with government diktats to spy and surveill Telegram users. I do know that, regardless of his particular motives, his refusal serves to stand in defense of the rights to privacy and Free Speech which come to every Telegram user directly from the hand of God.
That is knowledge enough to conclude that Pavel Durov stands on the right side of this issue, and the French government stands on the wrong side.
To borrow a hashtag from Elon Musk, “#FreePavel”.
That’s right. Until recently, free speech was a near-absolute in this country (with exceptions regarding defamation, slander, libel, etc., for which there are legal remedies).
If you don’t like what I’m saying, you can just walk away. You don’t have to listen to me. But I have Constitutionality guaranteed freedom of speech, and you don’t get to infringe on that.
The Authorities are using the old ‘it’s for your own good’ rationale to take away our freedom of speech. But that would lead to complete loss of freedom. Think of it: every day, countless illegal acts, including ‘wrong speech’, are being done in automobiles - drug deals,criminal planning, thefts, etc. Should we therefore outlaw all cars? Society would be ‘safer’, right? And should the car manufacturers be held liable for ‘wrong speech’ done in their cars? For that matter, ‘wrong speech’ is done everywhere - on school playgrounds, behind grocery stores, etc. It’s not possible to eliminate every possible place where someone is saying something that someone might find objectionable, or that might be criminal. Are you going to hold the schools liable because some kids planned a shoplifting spree while on the playground?
Okay, it’s not completely analogous to Telegram’s situation. But if criminals are committing crimes via Telegram, then go after the criminals and stop the crimes. Don’t shut down everyone else’s free speech.
Millions of people were trafficked before there was an Internet. Uncountable amounts of illegal drugs were sold before there was an internet. Holding people like Durov responsible for crimes committed vis his platform isn’t going to change the illegal activities in this world; they will continue via other means. The Authorities are fixating on limiting speech, but that is a path straight to totalitarianism. We cannot go there!