Irrational Liability: Is Telegram a Criminal Plot?

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This week, Telegram’s founder, Pavel Durov, was arrested by French police at the behest of prosecutors seeking to charge him with a myriad of crimes, including the distribution of CSAM material and also drug sales.

Durov has not done any of the things he is charged with, as far as one can tell, but it is possible that Telegram users have.

It is also possible that these crimes have been committed using apps or websites on every social network in the world.

Telegram supports public chats in groups and private chats. Pavel is accused of refusing to cooperate with police in surveilling private chats and, thus, “enabling” criminal acts.

Telegram is not end-to-end encrypted for public spaces but for private chats. To preserve the privacy of its legal users, the keys to the private chats are stored on a large number of servers spread across a large number of places.

So, unlocking the private spaces is beyond the means of any single jurisdiction.

Apple, you may recall, goes even further with its Messages platform, deleting the keys required to unlock private content. We can assume that anything criminal happening on Telegram also happens on iPhones, iPads, and Macs.

So, what should we understand about this arrest? Durov is not a bad actor. Or if he is, then so is Tim Cook, WhatsApp owner Mark Zuckerburg, Signal's owner, and so on.

The French Government (prosecutor in this case) is acting out of a desire to break private encrypted spaces by forcing platform owners into criminality. It seems likely that other governments will feel the same way. In a well-written piece for the Guardian, Jennifer Rankin (see below) states that:

”Durov’s arrest – after an investigation by the Paris prosecutor into organised crime, child sex abuse images, fraud and money laundering on the platform – also raises the stakes for the European Union, which has adopted the world’s most ambitious laws to police the internet, notably the Digital Services Act (DSA). Coming into force in November 2022, the DSA targets online platforms “too big to care” – in the words of the EU commissioner, Thierry Breton – putting demands on internet firms to remove illegal content, protect children, tackle disinformation and other online harms.”

The implication is clear. If the encryption can be broken, the DSA will increasingly be used to restrict private communications. The Guardian notes that anti-democratic Governments in Russia also want this to help them unmask activists opposed to Putin.

So, despite the claims of criminality, the victim here will be privately protected communications. Or companies will build systems that have no key that can be unencrypted, like Apple.

By comparison, this would be like arresting a bar owner because third-party customers had private conversations in the bar, some of which were criminal. It would paint the proprietor with the same colors as the criminals and punish him if he refused to record their conversations.

So, it will not surprise you that I consider this arrest an excellent example of irrational liability. There are indeed many criminals among the human race. It is also true that these criminals use tools that law-abiding citizens also use. It seems clear that Telegram, or a bar in Paris, is not to enable criminal acts. But it does have a duty of care to preserve privacy.

To make Durov liable for Telegram users is an injustice and an abuse of state power by officials who realize it is impossible to prevent privacy, so they resort to bullying and coercion.

We would certainly not be OK with the postal service opening every letter to try to fund the criminal needles in the haystack. We should also not be OK with attempts to break encryption, even with the same aims.

Mark Zuckerburg revealed this week that the Biden administration placed “enormous pressure” on Meta to censor COVID material and not to publish revelations regarding Hunter Biden.

“The Biden administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire,”

Now, the Brazilian Government is also in on the act, punishing Elon Musk’s companies (not only X) due to X’s failure to respond to “government requests to suspend accounts found to be spreading fake news.”

There is a more significant issue here. Technology has reached the stage where almost any helpful software or hardware is instantly global. Rights exist locally, but technology is global. Regulation by national jurisdictions means international companies face slow and inconsistent accusations, often influenced by undemocratic regimes. Any democratic instinct is soon confronted with attempts to exercise government control.

Apple’s reaction, to encrypt conversation and throw away the keys, is rational in the context, as is its refusal to ship AI software into the EU due to not knowing what it is, and is not, allowed to do.

If humanity's best is innovating and advancing goals we all share while nation-state leaders seek to stop, slow, block, and censor, then it might be time to question how we organize the world. Defining individual rights in a global context is undoubtedly challenging, but not doing so might be worse.

Hat Tip to this week’s creators: @romaindillet, @nickwingfield, @JenniferMerode, @Ike_Saul, @terrence_mccoy, @TrishaThadani, @falamarina, @jacknicas, @kateconger, @rocketalignment, @ZeffMax, @MGSiegler, @anissagardizy8, @alex, @AnnaGetsPithy, @IndianIdle, @Katie_Roof, @Kyle_L_Wiggers, @elonmusk, @bindureddy

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• Editorial:?Irrational Liability: is Telegram a Criminal Plot?
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