The arrest of Pavel Durov, founder of messaging platform Telegram, in France on Saturday has sparked great interest. He faces 6 charges alleging complicity in running an online platform that allows illicit transactions, images of child sex abuse, drug trafficking and fraud, as well as refusing to communicate information to authorities, money laundering and providing cryptographic services to criminals.
His arrest has raised many questions, not least why he would voluntarily land in a country which he knew to be pursuing charges against him (although he is a French citizen). Some have suggested the arrest is driven by strategic concerns to counter Russian influence. On the legal side, many are curious about the implications of his arrest for the liability of platforms as well as the personal liability of company executives. Libertarians are incensed. Elon Musk has made a call to #FreePavel while Nick Gillespie, editor at large at the libertarian outlet Reason Magazine, lambasts Durov’s arrest as an outrageous attack on free speech and suggests he may be the next Julian Assange.
Free speech is a noble principle, the purpose of which is to promote discussion and debate in the pursuit of truth and to protect political opinion even when it is at odds with the views of the powerful. It is critical to democracy and human progress that we protect it; this includes protecting forums where discussion and debate are pursued. But in no sense does this require us to allow such spaces to facilitate unlawful transactions. The need to protect children from online exploitation has driven stronger platform regulation in many jurisdictions, and even prompted moves in the US to limit the immunity granted under section 230 of the Communications Decency Act.
That doesn’t stop the free-speech absolutists from performing a rhetorical sleight of hand that signals either ignorance or bad faith. This can be seen in the words of Reason’s former managing editor, JD Tuccille: “The qualities that make communications systems useful to those battling authoritarianism are also helpful to those with less benign intentions. There's no way to offer security to one group without offering it to everybody.” It is true that encrypted messaging is a crucial tool for political resistance in authoritarian regimes. While Telegram is in any case not fully encrypted, we should be wary of any laws that seek to impose general monitoring obligations. Indeed, the UN Special Rapporteur on Freedom of Expression and Opinion has argued against the imposition of such laws.
But protecting political speech does not require platforms or their executives to be immune from criminal liability, as if we could not have the former without the latter. Instead, it requires the balancing of free speech with other rights and obligations, including the protection of children. The libertarian view that to protect speech we must give platforms immunity for knowingly hosting illegal content embodies an expansion of the concept of speech to encompass not only civil discourse and debate but the transmission of any electronic data. Nonsense upon stilts.
Michael Davis, CMT Research Fellow