The Growing Threat To Freedom Of Expression

The arrest of Pavel Durov and other global threats to privacy, security and freedom of expression

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Episode No. 101

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Today on Legalese, we discuss the newest threats to free speech. Especially, the arrest of Pavel Durov, and the way in which France’s Emmanuel Macron has, in the name of free expression and democracy, managed to not only emulate, but outdo some of the greatest protectors of free speech and free expression among world leaders.

I am of course talking about those great paragons of enlightenment values, Vladmir Putin and Ayatollah Mother-Fucking Khamenei.

Viva la France!

As many of you have likely heard, Pavel Durov has been arrested in France. Durov is the creator of the Telegram platform. Pavel Durov is a political prisoner, whose freedom has been stolen by an authoritarian government who have all but admitted he is being held for his commitment to free expression and digital privacy.

Officially speaking Durov was arrested on charges of “complicity in fraud, drug trafficking, human trafficking, cyberbullying, organized crime, child pornography and promotion of terrorism.”

The most important part of those charges are the first two words, complicity in— Because what they mean by that is that Pavel Durov has not committed any of those crimes, nor has he associated with anyone who has actually committed those crimes. Rather, that means they have identified particular instances in which people who have committed those crimes had been users of Telegram and may have discussed or promoted those crimes through their telegram channel at some point.

For that they are holding the company CEO criminally responsible.

For those unfamiliar with Durov and Telegram, Telegram is a messaging app utilizing the Signals encryption protocol to allows users to communicate through both encrypted and unencrypted chats that create “channels” that other users can also subscribe to. Pavel Durov also has a truly admirable history of refusing demands by government authorities to turn over private user information of people who utilize his platform, which is why this app is so popular with people who live in countries where internet access and messaging services are tightly monitored and controlled, such as China, Russia and Iran. And why he is so unpopular with the authoritarian dicks who run those countries.

This commitment has made Durov many powerful enemies. Not the least of which being the government of his home country, Russia. A country Durov had to flee in 2013 when the Putin regime demanded he give the government access to user information and private message decryption keys on an earlier product Durov created, the Russian social media platform VKontakte (VK). This led to the Russian government simply seizing the site. Furthermore, his refusal caused Putin to open a criminal investigation into Durov for complicity in promoting terrorism and child pornography (sound familiar?) forcing him to flee the country.

His current app, Telegram has been banned in Russia, China and Iran. Though it was also later unbanned in Russia and China to save face when they realized there was no way to prevent people from independently downloading the software.

Where Russian President Vladmir Putin, Chinese President Xi Jinping and Iran’s Ayatollah have failed to truly thwart Durov for his defiance of their Orwellianism and authoritarianism, France has succeeded.

One would think it goes without saying that blaming the creator of an app for the behavior of a small minority of its users is absolutely insane. But since France has not only arrested him, but defended their decision to do so, I guess this does need pointing out after all.

What they are doing is akin to arresting the CEO of General Motors for reckless endangerment and homicide because some fool decided to drive drunk in his Chevy truck and killed someone in a car crash.

This is why it’s so clear the charges against Durov are unjustified and politically motivated. Even the French government admits he committed no crime. He merely created a popular and functional product that some people have chosen to use for unsavory purposes. If this was really about fraud and terrorism, France would be going after the fraudsters and the terrorists who just so happened to use this product at some point in some way that may have facilitated the commission of some crime.

French President Emmanuel Macron took to Twitter to respond to what he believes to be unfair and untrue claims being made about the arrest of Pavel Durov.

I have seen false information regarding France following the arrest of Pavel Durov.

France is deeply committed to freedom of expression and communication, to innovation, and to the spirit of entrepreneurship. It will remain so.

In a state governed by the rule of law, freedoms are upheld within a legal framework, both on social media and in real life, to protect citizens and respect their fundamental rights.

It is up to the judiciary, in full independence, to enforce the law.

The arrest of the president of Telegram on French soil took place as part of an ongoing judicial investigation. It is in no way a political decision. It is up to the judges to rule on the matter.

~Emmanuel Macron on Twitter, August 26, 2024

It is surprising to hear Macron claim to have no involvement whatsoever in this investigation, since it is the Executive Branch that executes the laws of a nation and, as President, Macron is the head of the Executive Branch.

But apparently this Parisian Pontius Pilate feels comfortable washing his hands of the responsibility of an action he is in the middle of undertaking.

Pavel has been released from jail on a €5,000,000 bond. Which may sound like an improvement in his situation, but his bond virtually places him on house arrest in France. So, in a sense, he’s still being held prisoner, he just has a much more comfortable jail cell now.

It’s worth pointing out that the French civil law system handles criminal investigations much different than ours. In the United States you are not indicted until the government is ready to bring a case against you. Plus, in the United States, the time between indictment and trial is only as long as it takes to get a case before the court. In French civil law, being formally indicted does not imply that the government believes they have the evidence to prove guilt. Nor does it necessarily even lead to trial, but merely indicates that the judges who have reviewed the allegations consider there is enough evidence to proceed with a further probe, and not the sexy alien abduction kind of probe. The decidedly unsexy legal kind of probe, where the government devotes untold resources to go fishing and hope they can find enough dirt to prove you have broken some law.

Under French civil law, investigations generally take several years before being sent to trial or shelved. This means the French government could keep him stuck there for years, impairing his ability to effectively run his company even if they never actually bring the case to trial. He could lose years of his life waiting for them to decide if they will take him to trial; and, if convicted, he would then have to serve the full term of his sentence, with no consideration to the years he has been banished to his current existence in legal purgatory.

The French government announced the case has been referred "to the Centre for the Fight against Digital Crime (C3N) and the National Anti-Fraud Office (ONAF) for the continuation of the investigations."  

Following Pavel’s bonded release, the Telegram CEO released a public statement that provided a fascinating update on the circumstances of his arrest. Pavel was aware the French government was considering bringing charges against him, which left many people wondering why he would have risked traveling to France, given his awareness of the precarious legal situation he knew he may have found himself in. Well, it turns out that he had flown into Paris on the invitation of Emmanuel Macron who had apparently invited Pavel to meet him for dinner, under the auspices of trying to resolve this matter. Which is precisely how French authorities knew exactly when and where Durov would be landing in Paris and were subsequently ready to arrest him the moment he walked off the plane.

Of course, learning that this whole quagmire was part and parcel of a deliberate decision by Macron to lure Durov into the country in such bad faith only makes Macron’s denial that the arrest was political and his claim to have nothing whatsoever to do with the ongoing investigation even more laughable.

Following Pavel’s release on bond, the French government would make public the full and official indictment against Pavel Durov, which gave us considerably more information than the unofficial announcement they released in wake of the actual arrest.

Looking at the official indictment, the offenses include complicity in the administration of a platform to enable an illicit transaction as part of an organized gang. A crime punishable by 10 years in prison and a €5,000,000 fine.

While that first part of the indictment is obviously a great danger to Pavel’s freedom, the second part of the indictment is a great danger to all our freedoms, because it confirms what many of us have suspected, that this indictment may spell the very end of a free internet itself in France, if the French government is successful in its prosecution.

It says he is responsible for laundering crimes and offenses by an organized gang because his service provides cryptology aimed at ensuring confidentiality. In other words, anyone who creates or uses cryptographic services for simple digital privacy and security without compromising that security out-of-the-gate is a criminal.

It also charges him with:

Supply and import of a means of cryptology not exclusively ensuring functions authentication or integrity control without prior declaration.

~Pavel Durov Indictment

This bit of legal jargon comes from Article 30 of French law, which says:

The supply, transfer from a Member State of the European Community or import of a means of cryptology not exclusively ensuring authentication or integrity control functions are subject to prior declaration to the Prime Minister ... The supplier or person carrying out the transfer or import shall make available to the Prime Minister a description of the technical characteristics of this means of cryptology, as well as the source code of the software used.

~Article 30(III) of the "Law No. 2004-575 of June 21, 2004"

In other words, you cannot provide people with any service that offers digital privacy and security without first providing the government with the tools they need to completely undermine that privacy and access all private data.

It’s striking to compare the charges against Pavel and the demands that are being made by the French government, and those that were being made by the Russian government in 2013 with VK and 2017 with Telegram. They are nearly mirror images of each other… Though I’m sure that says nothing about the French government’s motivations and intentions.

Though I must admit, as a legal analyst, I can’t help but tip my hat in respect to the way these cheese-eating surrender monkeys have demonstrated a truly masterful exercise of jargonistic legal phraseology to create an impressively innocuous sounding description of something they wish to classify as a criminal offense that seems downright totalitarian when it’s explained in plain terms.

But it is the very subtle and nuanced nature of these culturally subversive infringements on free expression in the so-called free world that makes these actions so dangerous. Governments engaging in this form of infringement of our rights and liberties have done a very good job convincing a great number of people that what we are seeing is something other than an attack on free expression.

Many of whom will go so far as to say “not only is this not an attack on civil rights. It’s the responsible embracing of those very rights.” Because apparently being free requires abdicating our freedom to others... for our own good.

That’s right, the only way to truly have something is to give it up to fundamentally untrustworthy people and trust them to give it back to us in measurable doses they deem safe for human consumption.

This is typified by people like Alexander Vindman. In a tweet posted on August 25, 2024 he would praise this arrest and indictment as a sign of growing intolerance for platforming disinformation and malign influences and an increasing appetite for accountability from people he refers to as MAGA tech bros and free speech absolutist weirdos. Though he is simply talking about people like Durov, Elon Musk, Chris Pavlowski and others who merely provide a platform for free expression or a medium for digital privacy of their data and communications.

On the other hand, Mikhail Svetov, the head of the Russian Libertarian Party and a friend of Durov would publish a fantastic article entitled “An appeal to the dissident right from the Russian opposition about the arrest of Pavel Durov” Svetov talks about when Putin began attacking Telegram in 2017 as a tool of terrorists and criminals, Mikhail Svetov’s very public defense of Durov and Telegram led to Putin opening a criminal investigation against him and his team. Just like Pavel, they too had to flee Russia into political exile.

At the time, both he and Pavel Durov:

...[W]ere naive and thought it was a uniquely Russian problem. We actually thought Putin was a backwater dictator preventing Russia from joining the family of free nations. Unfortunately, we couldn’t have been more wrong.

As it turned out, Putin was the trailblazer. He set the example for the rest of the Western political class with his censorship, destruction of privacy, and surveillance. It turned out, the West was simply trailing behind.

~Mikhail Svetov, An Appeal to the Dissident Right

Unfortunately, Pavel’s arrest by the French government is not an isolated incident. It is just one in an ongoing series of actions being taken by so-called “free and democratic” western countries.

This includes the threatening letter sent to Elon Musk last month on August 12^th by Thierry Breton, the Industrial Chief of the E.U. reminding Elon of what the consequences will be if he fails to censor twitter within the EU’s Orwellian standards. You see, in 2022, the European Union passed a disturbing law known as the Digital Services Act. This act forces all digital service providers to disclose their patented algorithms to E.U. regulators and require the removal, on demand by the E.U. of any content they arbitrarily decide to label as “disinformation”.

Then last month, Elon Musk was scheduled to interview our Republican Party’s Presidential Nominee Donald Trump— and this belligerent Belgian bureaucrat assumed the interview would contain “illegal” disinformation. So he reminded, by which I mean threatened, Musk that any failure to take down content labeled “disinformation” by the E.U. would make Twitter legally liable under the Digital Services Act.

Companies that do not comply with the new obligations risk fines of up to 6% on their global annual turnover. In addition, the Commission can apply periodic penalties up to 5% of the average daily worldwide turnover for each day of delay in complying with remedies, interim measures, and commitments. As a last resort measure, if the infringement persists and causes serious harm to users and entails criminal offences involving threat to persons' life or safety, the Commission can request the temporary suspension of the service.

~The enforcement framework under the Digital Services Act.

Furthermore, many of you are likely familiar with a recent decision by the notorious Brazilian Supreme Court justice, Alexandre de Moraes, who has essentially taken dictatorial control of his country and demanded Elon Musk comply with orders to remove the accounts of Brazilian politicians he disagrees with, and demand that Musk name a twitter representative in Brazil to essentially be held hostage as a guarantee he complies with this Judge’s decree, as though it were law— lest this random Twitter employee be held criminally liable for any failure to comply.

As a result, Elon has had no choice but to lay off every twitter employee working in Brazil— Consequently this insane Supreme Court Justice has now banned access to twitter nationwide in Brazil. This Judge has also frozen all Brazilian assets of Star Link, Elon Musk’s satellite internet company.

While that story has received a fair amount of coverage among corporate media, one story that has gotten almost no coverage and that many people are totally unaware of has to do with Rumble, a popular video sharing platform that’s seen as a free speech alternative to YouTube, which has already been shut down nationwide in both France and Brazil due to their refusal to comply with government decrees for arbitrary censorship.

This means that numerous western liberal democracies, like France, are now taking their censorship demands even further than their favorite boogeyman, Vladmir Putin.

If Vladmir Putin is a bad guy (and he is) what does it say that people like Emmanuel Macron are proving to be even worse?

And while Europe’s authoritarian censorship is certainly far more advanced than our own here in the United States, one can’t help but feel we are just trailing a little further behind the EU in our adoption of Russian surveillance and censorship standards.

As the Twitter Files and the Murthy v. Missouri case have demonstrated, perhaps it's not that our government is less desirous of this same level of control over free expression, perhaps just less effective at implementing it… at least for now.

Here in the United States, we are seeing these subtle but disturbing infringements all over the place. It’s coming from the left and the right and is occurring at both the state and the federal level. The same Red State Governors, such as Ron DeSantis and Greg Abbot, who have rightfully been calling out the censorship of conservative opinions, while ostensibly cloaking their indignant outrage in the mantle of free speech, are now signing executive orders making it a crime to belong to any Pro-Palestinian organization or to hold pro-Palestinian demonstrations. In other Executive orders, these governors have banned criticism of the Israeli government’s actions. Equating criticism of the actions of a nation state with antisemitic hate speech. They are actually employing the very same ‘Hate Speech Isn’t Free Speech’ argument that they have consistently denounced as being fundamentally untrue when that claim is leveled against them.

We should also not forget that as Israel’s ability to continue fighting with Palestinians is only possible with the United State’s continued economic, military and moral support for Israel. Any attempts to silence critics of Israel or defenders of Palestinians must also be seen as an attempt to silence our right to criticize our own government’s actions as well— Since these actions (and consequently, our declared ‘national interests’) are so inextricably intertwined with the actions and interests of the state of Israel.

Not to be outdone, leftist Governor Tim Walz has been anything but a friend of free expression. I’m talking about Walz’s troubling pattern of making claims such as his December 2022 appearance on MSNBC’s “The Reidout with Joy Reid” when he stated:

There's no guarantee to free speech on misinformation or hate speech, and especially around our democracy.

But the first amendment does not make any distinction whatsoever between good or bad information. There is only information, and we all have the unfettered right to engage in the sharing of it. Be it right or wrong. Interestingly, since this “hate speech and misinformation exception” to freedom of expression is a patently false claim, this makes Tim Walz the very same sort of agent of misinformation that he is denouncing.

Of course, even if he were right about this phantom misinformation exception to the First Amendment, there is the troubling question of “Who elected this dick to delineate between truth and falsehood.”

As a Minnesotan I am very familiar with our State Constitution, which I assure you grants our governor no such power. Nor does the U.S. Constitution give that power to the Executive Branch that Walz may be a key player in if Kamala Harris wins the Presidential Election.

In fact (and of course) that power has not been granted to any part of the body politic of the United States on either a state or federal level.

In conclusion, if you take away one thing from this article, let it be this— No one should make the mistake of believing that it is only Pavel Durov’s freedom that has come under attack. It is all of ours, and that’s why we all need to speak up on his behalf.

#FreePavelDurov

Because his arrest is not an isolated issue, nor are the examples of infringements on free expression I have given isolated examples. Around the world, the national and multi-national political class are waging a war on individual liberty, on freedom of expression and on our right to digital privacy.

So if you’re a journalist, keep writing about the prosecution of Pavel Durov.

If you’re an activist, organize a rally in support of Telegram and freedom of expression.

If you’re politically engaged, write to your US Representative for your district and ask them to talk about what the French government is doing to Pavel Durov and to use their platform as a bully pulpit to demand he be set free.

If you are none of those things, post this article across social media, or send it out to your friends and family to try and inform them about what is going on. Because this is an issue that affects everyone who believe they live in the ‘free world’— even if they don’t realize it yet.

Whatever you do, do something.

Because if we let them get away with doing this to Pavel Durov, next it will be Elon Musk, then perhaps Chris Pavlowski (founder and CEO of Rumble) and so forth— Because once every person with power, making any effort to use that power to provide some measure of online freedom, privacy or security has been neutralized— and the avenues they had provided to privacy and security are gone, they have got the rest of us, dead to rights.