Prosecutors in France used a powerful tool while targeting Telegram CEO Pavel Durov: a recently passed legislation that criminalizes internet giants who permit illicit goods or activities on their networks. This statute has no counterpart outside.
Adopted in January 2023, the so-called LOPMI law has elevated France to the forefront of a group of countries adopting a more stringent approach to crime-ridden websites. However, the statute is so new that there hasn’t been a conviction obtained by prosecutors yet.
France’s innovative effort to prosecute individuals such as Durov may backfire because the law has not yet been put to the test in court if judges there refuse to fine tech executives for alleged wrongdoing on their platforms.
Last month, a French judge officially opened an inquiry into Durov and accused him of a number of offenses, including the 2023 offense: “Complicity in the administration of an online platform to allow an illicit transaction in an organized gang.” This is punishable by a fine of 500,000 euros ($556,300) and a maximum term of 10 years.
Judges believe there is sufficient evidence to move forward with an official investigation, but this does not necessarily mean guilt or result in a trial. Years may pass during an investigation before they are dropped or put on trial.
Durov, out on bail, denies Telegram was an “anarchic paradise.” Telegram has said it “abides by EU laws” and that it’s “absurd to claim that a platform or its owner are responsible for abuse of that platform.”
The Paris prosecutor, Laure Beccuau, praised the 2023 law as a potent weapon against increasingly operational online organized crime groups in a radio interview conducted last week.
The law seems to be special. According to eight academics and attorneys who spoke with Reuters, no other nation has a statute like this one.
“There is no crime in U.S. law directly analogous to that and no one that I’m aware of in the Western world,” stated Adam Hickey, the former deputy assistant attorney general of the United States who founded the national security cyber program of the Justice Department (DO).
Hickey, now at U.S. law firm Mayer Brown, said U.S. prosecutors could charge a tech boss as a “co-conspirator or an aider and abettor of the crimes committed by users,” but only if there was evidence the “operator intends that its users engage in, and himself facilitates, criminal activities.”
He brought up Ross Ulbricht’s 2015 conviction, who sold drugs through his Silk Road website. American prosecutors contended Ulbricht “deliberately operated
Silk Road as an online criminal marketplace… outside the reach of law enforcement,” according to the DOJ. Ulbricht got a life sentence.
Ulbricht’s prosecutor, Timothy Howard, a former federal prosecutor in the United States, was “sceptical” that Durov could be found guilty in the country without evidence that he was aware of the crimes on Telegram and actively encouraged them, especially considering the platform’s sizable user base, which is primarily law-abiding.
“Coming from my experience of the U.S. legal system,” he said, the French law appears to be “an aggressive theory.”
According to Michel Sejean, a French cyber law scholar, authorities in France became irritated with businesses such as Telegram, which prompted them to enact stricter laws.
“It’s not a nuclear weapon,” he said. “It’s a weapon to prevent you from being impotent when faced with platforms that don’t cooperate.”
TOUGHER LAWS
The 2020 French Interior Ministry white paper, which advocated for significant technological investment to combat escalating cyber dangers, is where the 2023 law got its start.
In November 2023, a law akin to this one was passed, incorporating a provision enabling the real-time geolocation of individuals accused of significant offenses through remote device activation. The French Constitutional Council rejected a proposal to activate the cameras and microphones on their gadgets so that investigators could see or hear what they were doing.
The fact that Durov was arrested in France is evidence that these new rules have given France some of the most powerful weapons in the world to combat cybercrime, according to Sadry Porlon, a French attorney who specializes in communication technology law.
Tom Holt, a cybercrime professor at Michigan State University, said LOPMI “is a potentially powerful and effective tool if used properly,” especially in investigations into credit card trafficking, photos of child sexual abuse, and distributed denial of service attacks against governments or companies.
Now that it has newfound legislative authority, the Paris prosecutor’s office’s ambitious J3 cybercrime branch, which is in charge of the Durov investigation, is taking on some of the most prominent cases in France.
The anonymous chat forum Coco, which has been referenced in more than 23,000 court cases since 2021 for offenses like prostitution, rape, and murder, was shut down by the J3 unit in June.
In a recent trial that has shaken France, Coco was a key player. Dominique Pelicot, 71, is charged with enlisting the help of numerous men on Coco in order to rape his wife, whom he had drugged unconscious. Pelicot has acknowledged his guilt and is scheduled to testify this week. Fifty other men are accused of rape.
Coco’s owner, Isaac Steidel, is suspected of a similar crime as Durov: “Provision of an online platform to allow an illicit transaction by an organized gang.”
Steidel’s lawyer, Julien Zanatta, declined to comment.
Also read: Unveiling the Ethical Imperatives: Navigating the Intersection of AI and Cybersecurity
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