“This case has the potential to set precedent for all of the internet.”

The last few weeks have been turbulent in many departments (wars, elections, TV debates, etc.), but they brought particular upheaval to the tech world. More and more governments seem eager to reassert sovereign power over digital corporations, a trend recently culminating in the arrest of tech CEO Pavel Durov at a Paris airport.

We asked Kate Klonick, one of the leading experts in the field, what’s going on. Kate is an Associate Professor at St. Johns University School of Law in New York and currently a Visiting Professor at Sciences Po in Paris. Also, she’s a Fellow at the Information Society Project at Yale Law School, Harvard’s Berkman Klein Center, and the Brookings Institution.

The Interview was conducted by Moritz Schramm.

1. Hi Kate, I see you’re currently in Paris. The past few weeks have been turbulent for tech lawyers, especially those focused on content moderation. The arrest of Telegram founder Pavel Durov in France made headlines everywhere. Although he’s now out on bail, he’s not allowed to leave the country. Could you tell me more about who Pavel Durov is and why he was arrested?

Pavel Durov is the CEO of the speech and messaging app Telegram, which supposedly had 900 million monthly active users world-wide. He was arrested pursuant to an order by the Tribunal Judiciaire de Paris – which is a very serious French Court – for U.S. readers, it would be perhaps the equivalent of the Southern District of New York in the U.S. federal system.

The charges against him are equal parts very serious and vague. They range from complicity in drug trafficking and distribution of child sexual abuse material to “association de malfaiteurs” (criminal conspiracy) and illegal use of cryptology equipment. But the details and facts around each of these charges and what the specific claims relate to are currently unknown. For instance, the charge of illegal use of cryptology [i.e. encryption – not ‘crypto’ currency] could simply reference the use of encrypted systems to hide information from lawfully obtained warrants, or it could relate to a prosecution as broad as all of Telegram’s encrypted message systems writ large. If the former, this targeting of encryption might just be confined to the facts and circumstances of Durov’s case; if the latter, all messaging platforms that use encryption to keep user conversations private from both the companies and government requests – Apple’s Messenger, Meta’s WhatsApp, or Signal – might be at risk. So the case has taken on a much higher profile and import than just Durov and Telegram, it has potential to set precedent for all of the internet.

2. Let’s dive into the charges. French prosecutors seem to have two major concerns. First, Telegram has a history of refusing to cooperate with French authorities. For instance, when the police are pursuing terrorists, drug traffickers, or similar offenders, and they serve a warrant, Telegram essentially stonewalls them. Second, and perhaps more fundamentally, France is concerned about the platform’s lack of moderation. Moderation here means taking down harmful content, like calls to violence. Telegram is notorious for its “anything goes” approach. What’s your take on these charges? And, from what we know so far, what do you think are the politics behind Durov’s arrest (if there are any)?

Yes, this is exactly what’s going on, and they’re related. Telegram’s approach to not comply with subpoenas or answer to warrants or to do much or any content moderation are all different shades of a general approach to governance – both governance that comes from state governments and private governance of their own platforms.

If one was being less cynical about it, one might argue it came from a principled libertarian stance, one with roots in a John Perry Barlow type belief about the internet – that the internet is a place where individual liberty can flourish and people can escape government surveillance and censorship.

If one was being more cynical about it, one might argue that Durov doesn’t want to spend money or put effort into complying with laws – even laws against the worst parts of the internet, like Child Sexual Abuse Material (CSAM) or terrorist propaganda. If one was being even more cynical about it, one might argue that Durov used this approach as a way to differentiate his platform from others and to make it the most attractive platform for grey and black market activity.

3. Fascinating. This standoff really touches on the bigger question of who controls the internet: states or private companies. On one hand, the internet shouldn’t be a lawless space, and it’s important to prevent its misuse for illegal activities. Enforcing laws online can be perfectly legitimate. But on the other hand, global platforms like Telegram face complex challenges when cooperating with governments, especially when some states—Russia, Myanmar, DPRK, Iran—are themselves involved in questionable activities. So where should the line be drawn? Should these companies have the power to decide which states they’ll cooperate with based on their view of a country’s democratic legitimacy?

Yes, I think that is exactly what this argument touches on, and you’ve framed this so well. Let’s break this apart:

First, on the one hand, we want a society of laws! And we want those laws to be enforced! But in a global internet, we are constantly confronted by the fact that these platforms and companies operate transnationally – they connect people both within and between countries. That opens up huge jurisdictional challenges in the first instance of which countries’ laws should be complied with and how.

But, even leaving the complex jurisdictional questions aside, the internet forces us to confront the idea that not all laws are legitimate – and how we define legitimacy. This is the second issue. I think from an American or European perspective, it is very easy to say, well, the laws of democratic countries should be respected, and maybe platforms shouldn’t respect the laws of authoritarian countries like the ones you listed. But then what about the ones that have democratic-governments-in-name only? Arguably places like Brazil or India or Hungary.

This brings us to the third part of this – which is who is getting to decide which governments and laws are worthy of compliance. So maybe from an American and European perspective, we think that it’s righteous that Facebook or Telegram refuses to take down same-sex kissing photos in India even though that might be against their laws. But we think it’s too far if that non-compliance extends to requests from “legitimate” governments for warrants on people who allegedly have distributed CSAM.

All of this is an incredible game of three-dimensional chess, and the stakes are constantly changing.

4. That said, any thoughts about how Elon Musk and his refusal to have X comply with Brazilian law play into this?

Ha, yes, I am actually loving how Musk and X’s response to the Brazilian court’s decision to block them is happening at the same time of Durov’s arrest. Because I think, on the one hand, it’s been very easy for us to see France, a Western democracy going after Durov’s failure to comply with warrants around CSAM and terrorist content on Telegram as a very legitimate use of state power. You hear a lot of “the platforms can’t escape the rule of law.”

But on the other hand, Musk has brushed off Brazil’s court orders and been a bit of a hero for it, in the name of free speech. And I think the dichotomy of those two things, at the same time, hopefully makes the bigger picture problem we discussed above more real.

5. Let’s wrap up with a broader question. As a US academic living in Paris, I understand that you, like many Americans, tend to have a more critical stance on government regulation of social media compared to many Europeans. Meanwhile, Europe is actively trying to reassert the supremacy of public power online, with initiatives like the Digital Services Act and high-profile events like Durov’s arrest. Do you think these ambitious European efforts will succeed (particularly as no major tech company is European…)?

I think it depends what you mean by succeed! Will they go into effect? Absolutely. Will they make a better internet for European consumers? I think that’s much more doubtful.

I have spent a lot of time looking at the DSA and DMA and how it might be enforced in the coming years – and I’ve spent more than a year using European internet and platforms as these regulations come into effect. And the information ecosystem and the quality of the internet experience in Europe is very different in the United States than it is in Paris or Brussels. They are small differences, but they amplify – and I’m frustrated by how much more friction there is in Europe, how much worse search results are, how many platforms have decided just to suspend certain services here rather than try to comply (and potentially fail to comply and be fined) with regulation.

But I think, like any new industry – printing press, cars, indoor plumbing, television –, we’ll figure out a balance and it will stick. And we as a society will ever forget that there were alternatives or that things could have gone a different way.

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Editor’s Pick

by MORITZ SCHRAMM

No matter what you do, hour after hour you spend at your desk. If you, dear reader, are among the 92% of people who occasionally listen to music while working, we have something for you: the unparalleled, endlessly repeatable, truly complex, and simply magically harmonious ambient sets by Australian producer and DJ Chris SSG (here’s the overview). In daily life, the man is a professor of political science at a university in Tokyo, researching mainly democratic theory. But that’s beside the point here. If you’ve never heard of ambient music – just give it a listen, you have to hear it, not theorize about it. For those who are skeptical or don’t have the time to dig through to find a new favorite set: this one is great, my favorite, and so is the set that’s apparently playing in the lobby of the Schauspielhaus Zürich (i.e. the main theater in Zurich). By the way, the picture was taken pretty close to where I saw Chris SSG play for the first time — somewhere in Japan in the summer of 2017.

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The Week on Verfassungsblog

Border controls, rejection of refugees at the border, and cuts to social benefits: Since the attack in the German city of Solingen, politicians have been discussing drastic tightening of asylum and migration laws. While the opposition proposed a derogation under Article 72 TFEU, Federal Interior Minister Faeser ordered the extension of internal border controls to all of Germany’s national borders. This quickly drew criticism not only from Germany’s European neighbors but also from legal scholars, who are questioning whether this activism in the asylum debate is compatible with constitutional and European law. FRANZ C. MAYER (DE) observes that much of the debate is taking place without proper consideration of European law and suggests that the current handling of the law could undermine trust in Germany’s reliability and European policy. MATTHIAS LEHNERT and ROBERT NESTLER (DE) have examined the state of emergency argument more closely and see little chance of it holding up before the European Court of Justice (ECJ). LEONIE DÄRR and HANNAH FRANKE (DE) have analysed the demand to reduce or completely cut benefits for so-called “Dublin cases” and explain why this plan might be incompatible with rulings of the Federal Constitutional Court.

The Draghi Report was published this week. In there, former ECB chief Mario Draghi analyses the EU economy and outlines the “existential challenges” to European competitiveness. However, the report hesitates on one crucial point: instead of seeking Treaty change, it relies on existing provisions and shaky governance modes to achieve its goals. PETER LINDSETH and PÄIVI LEINO-SANDBERG (EN) argue that this approach is legally dubious and politically unwise. They propose instead to facilitate obviously necessary Treaty reform.

Not much has changed in terms of the climate situation, but the mood has changed with regard to the European “Green Deal”. CHRISTIAN CALLIESS (EN) explains that what is needed now is action, not words, and what still stands in the way of the EU achieving its own climate policy goals.

In France, President Emmanuel Macron’s choice of Michel Barnier as prime minister has led to renewed protests. ELEONORA BOTTINI and NICOLETTA PERLO look at the situation from a constitutional perspective. They conclude that the institutional role of the president is reaching its limits under the current circumstances.

There is a new draft law in Bavaria. It aims to restrict the circle of people who can act as defence lawyers in criminal proceedings. So-called lay defence lawyers are particularly affected. FLORAIN REINERS (DE) is critical of the proposal, arguing that it’s often lay defence lawyers who enable people in precarious socio-economic situations to access justice, which is important for the rule of law.

Our digital section this week focused on the perhaps oddest Article of the Digital Services Act (DSA), Article 21. It calls for the establishment of private quasi-courts to adjudicate content moderation disputes. Users Rights, a Berlin-based organisation, is one of the first to take on this role. HANNAH RUSCHEMEIER, JOÃO PEDRO QUINTAIS, IVA NENADIĆ, GIOVANNI DE GREGORIO and NIKLAS EDER (EN) explain how the now established “Article 21 – Academic Advisory Board” is dealing with the practical implementation of the DSA.

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That’s all for this week. Take care and all the best,

the Verfassungsblog Editorial Team

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