New Delhi

Where does privacy end and criminal secrecy begin? And when is law enforcement an act of breach of human rights, confidentiality, or privacy? These are philosophical questions that hang in the air after the arrest in France of Pavel Durov, the billionaire founder of the controversial messenger app Telegram, which has replaced or supplemented WhatsApp,  Facebook, and Instagram (all incidentally owned by Meta) for hundreds of millions of users concerned over whether, how much and why they may be snooped on — by hackers, trouble makers and law enforcement authorities alike.

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Now, imagine a situation where the local police have the authority to enter any room in a hotel at midnight looking for criminals.

Theoretically, it is law enforcement at work, but then what is the default option for law enforcers? Is it an obligation to respect privacy or a right to enforce the law?

The arrival of Telegram has queered the pitch. By most accounts, it has become a sort of official go-to place for those who cannot access the Dark Web, or "darknet" the hidden part of the internet that's not indexed by search engines and accessible only to those with some browsers.

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Pavel and Nikolai Durov launched Telegram in 2013. The app now boasts of 950 million users, a big jump from 550 million users in 2022. You can imagine how viral its growth has been.

France says there is no politics behind the detention of 39-year-old Durov, but the Paris prosecutor has said he is being investigated over allegations of illegal transactions, fraud, child pornography, and failure to provide information to authorities. 

Also read | No 'political' motive behind Telegram CEO Pavel Durov's arrest, says French President Macron

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Indian authorities are said to be investigating the use of Telegram for extortion and gambling rackets even as there are rumours of an impending ban on the app.  

Also read | Telegram gets probed by Indian govt for gambling and extortion, may face ban: Report

Telegram was also used to illegally leak examination papers in India's common university and medical school entrance examinations conducted by the government. The Securities and Exchange Board of India (SEBI) has found instances of stock market manipulation using the messenger app. It stands to common sense that every country will have its own variation of the Telegram abuse story.

Telegram has officially slammed it "absurd" to hold the platform or its owner responsible for the abuse of the app. It seems correct on the face of it. But the catch might lie in the accusation that Telegram has failed "to provide information to authorities."

Given the global nature of the messenger app, one is not clear under which law, and in what manner is giving information to authorities an obligation that overpowers the right of an individual user, who in effect is switching to Telegram precisely because it offers encryption-based confidentiality and privacy.

Telegram chats use not only end-to-end encryption, but also a "secret chats" feature that involves a key that only the user and his/her recipient know. Imagine it like a locked room inside a safe house that has only two keys. It sounds fine in a jurisdiction that has clear privacy laws, but the world is a big place. Even in defined jurisdictions, authorities can and do have search warrants where required. 

Telegram falls into a grey legal area because it is a global app in a virtual world in which a lot can be exchanged including information and content whose financial and criminal motifs can be concealed.

However, there is a clear and present danger if Telegram acts like an uncooperative hotel owner when the police come looking for trouble. It is a damned-if-I-do-damned-if-I-don't situation.  If it obeys the law, it violates a core promise to its customers -- and vice versa.

The United States has laws including the First Amendment that protect press freedom and free speech.

Telegram can always invoke that as well as the Right to Privacy (incidentally upheld by the Supreme Court of India) to claim innocence. But hate speech and child porn are illegal stuff even in liberal democracies such as those in Western Europe.

The Council of Europe's Convention for the Protection of Individuals on Personal Data is said to be the only legally binding international agreement that protects privacy and personal data globally.

But, as a European state media report observed, the attention is on Telegram's "hands-off approach to content moderation" that may inflame unrest or serve as a conduit for criminal activity.

This is a bit like saying that a hotel owner has partial if not full responsibility to ensure that her premises are not used for criminal or illegal acts.

We are clearly entering a no man's zone of international law here, and one that involves new nuances. The elite Group of 20 nations (G20) is indeed aware of some things that need to be done, but it seems what we need is not a data protection initiative alone, but also a set of safeguards against abuse of privacy.

Meeting at Sao Luis in Brazil in June, the G20's Digital Economy Working Group discussed "strategies for safe internet usage, with a focus on data protection" and called for 'multi-sectoral collaboration. "

Pavel Durov's arrest only underscores that the agenda must be expanded to include safeguards against abuse of data protection laws by criminal elements. It is easier said than done in the backdrop of the Ukraine and Gaza conflicts and China's "Great Wall" approach to nearly everything! The internet is global but geopolitics is still the same old monster.  

Durov is a Russian-born and you just need to look at his citizenship record to get an idea of where things can go. From 2013 to 2021 he was a citizen of St Kitts and Nevis in the Caribbean and took up United Arab Emirates citizenship alongside that of France in 2021. Dual citizenship and offshore havens are now part of the problem.

Also watch | Gravitas: Why has the Telegram founder and CEO been arrested?

It seems Europe and the US, which typically lead calls for privacy and freedom respectively, need some Asian-style middle path.  India, which relinquished the G20 presidency last year, can perhaps step in there to do some interlocuting.

Disclaimer: The writer's views do not represent those of WION or ZMCL. Nor does WION or ZMCL endorse the views of the writer.