In late August, the arrest and preliminary charging of Telegram’s founder, Pavel Durov, by the French judicial authorities kicked off a high-stakes game of geopolitics that will shape how governments handle tech giants in the future.

Durov was arrested as part of an investigation by a cybercrime unit of the Paris prosecutor’s office into criminal activity on the Telegram messaging app. The tech tycoon is not accused of carrying out the various forms of organized crime (which include drug trafficking, arms trafficking and the distribution of child sexual abuse material) himself; rather, the charges are based on the premise that Durov may have been complicit in a wide range of these crimes facilitated by his platform.

In the French justice system, which tends to favour the prosecution in organized crime cases, the key to his defence will be to prove that there was no intent, i.e., that he did not deliberately allow these crimes to take place on his platform. However, Durov was arrested because he refused to cooperate with French prosecutors’ demands for data and access, just as he had refused to comply with Russian state requests for many years, leading him to leave Russia and move Telegram to the UAE, where the platform is apparently not subject to such demands. His refusal to comply with the French request for cooperation will not help his case.

Durov’s arrest is almost unbelievable, but also inevitable. In our age of all-powerful, international and well-connected tech magnates who promote their own brand of free speech – which includes in some cases allowing, or at least turning a blind eye to, the illicit activities taking place on their platforms – it was only a matter of time before one of them faced a day of reckoning at the hands of one justice system or another.

Evolving stances

The arrest comes hot on the heels of the agreement on 9 August of a new UN convention on cybercrime, a process over two years in the making, proposed by Russia and initially opposed by France (along with many other Western countries). In pushing for this new convention, Russia wanted to gain better access to data and evidence held by Western technology companies. But the companies, supported by civil society and private sector actors, pushed back against the more authoritarian and invasive proposals Russia included in the treaty.

The fact that this watershed arrest was made not by Russia of a visiting Western tech tycoon, but by French authorities of the head of Russia’s most popular social networking platform, now based in the UAE, marks a possible shift in how global authorities will police tech platforms where online criminal activity takes place.

The nature of Durov’s background and allegiances (he was born in Russia and holds Russian, Emirati, French, and Saint Kitts and Nevis citizenship) has turned the usual arguments about internet freedom on their head. Russia and the UAE are portraying the arrest as politically motivated, with support for Durov coming from across the political spectrum of Russian society. In the West, where Durov is less well known, public reaction has been more muted, but he has received vocal support from Tesla tycoon Elon Musk and from parts of the online community in the US. In a further twist, the arrest was praised by Iran’s Supreme Leader Ali Khamenei.

A new era?

There is no doubt that various harmful forms of organized crime are facilitated in varying degrees by the major social networks. Certain online platforms, such as EncroChat and SkyECC, are even known to provide tailored services for criminal groups to discuss their activities. The crimes enabled by online platforms range widely, and the private sector is clearly not doing enough to keep its house in order. Many networks have signed up to various national and international agreements and codes of conduct, but Telegram has not, which again does not help Durov’s case.

The inability and unwillingness of networks to police their own platforms, and of states to agree internationally on how to do so and what should be considered a crime, inevitably lead us to this point, where a national jurisdiction has taken unilateral action in what will become a major test case. Tech executives around the world are watching with trepidation, as are online rights activists, to see whether such actions may lead to state repression more generally.

The French judicial system is genuinely independent of political influence, but the charges have massive political implications that cannot be predicted. It is a Pandora’s box that could lead to wider state action against online platforms and retaliation from Russia or others if they have the opportunity to crack down on Western tech executives. It will also lead to pressure for equal treatment – for example, for how countries will react when Mark Zuckerberg is passing through – given the illegal activity on Meta’s platforms.

The case is also another reminder of the role of the UAE, and Dubai in particular, as a hub for platforms and individuals that facilitate organized crime. Durov benefits from an elite scheme that, since 2021, allows dual citizenship for those who bring high levels of investment and ‘special talent’. The case also raises questions for France about how Durov managed to obtain his French passport under another elite scheme, only to be arrested and barred from leaving the country.

But arguably what the case highlights more than anything else is the absence of a global understanding or strategy to address organized crime facilitated by social networks, while upholding human rights and freedoms online.  A delicate and controversial balance has been struck in the new UN cybercrime convention, but it has yet to enter into force and faces a long road to implementation. What is certain, however, is that the fallout from the Telegram case will shape how states respond to internet policing in the future.