Jamie Dettmer is opinion editor at POLITICO Europe.
Every generation in a democratic country has had to decide the right balance between individual liberty, national security and community wellbeing.
During the outbreak of Covid-19, freedoms were sharply curtailed with draconian constraints on civil liberties and private enterprise. Governments and advocates largely believed the need to curb the spread of the deadly novel virus, reduce the death toll and prevent public health services from collapse outweighed the importance of preserving individual freedoms. And publics were largely accepting of these emergency restrictions, with support for anti-establishment populists declining precipitously during the pandemic. Protests only flared when restrictions dragged on, or in instances of the powerful not observing the rules for the many.
Similarly, in the aftermath of 9/11, there was little public disquiet when U.S. lawmakers hastily passed the Patriot Act — a huge piece of legislation that, among other things, made it easier for authorities to spy on ordinary citizens by expanding powers to monitor phone and email communications, gather bank and credit transactions, and track online activity. The argument at the time was that government reach had to be increased in order to protect freedom — and there could always be a rollback when the danger was finally over.
Only a few were mindful of the dangers inherent in this approach at the time, worried that inadvertently balancing too far in the direction of security and safety risked long-term harm to democracy. The skeptics who dismissed government claims that things would later revert to normal were arguably right. Rolling back restrictions and intrusions is much easier said than done, as governments, law enforcement agencies and intelligence services are highly reluctant to surrender powers once they have them.
And now, Telegram CEO Pavel Durov’s arrest by French authorities and his indictment on a range of charges last week is likely the opening shot in what will be a prolonged legal and political struggle, the consequences of which will likely contribute to reshaping this balance of power between states and individuals.
The overarching question is, are we falling into a similar pattern as before, rushing to regulate, boosting government reach and seeking to increasingly curtail expression and speech in the name of this or that emergency — whether it be the climate crisis, social harms or geopolitical disinformation either peddled or slyly exploited by the likes of Russia or Iran?
Hardly a day goes by without Western governments declaring an emergency — a world war is looming, the Russians are coming, we have obesity and mental health crises, social harms are, of course, worsening from social media and then we have the rise of the new right.
All these are reasons cited by governments as they further intrude. And noticeably, the words “freedom” and “liberty” rarely trip off the tongues of EU commissioners or the Continent’s national leaders, whether of the liberal or illiberal sort, fanning fears about our direction of travel. Are we perhaps drifting into a state of unfreedom, placing us on the road to what economist Friedrich Hayek would have dubbed serfdom?
The latest skirmish is upon us already — and it’s over social media. In the past few days, Western regulators and governments have been moving against social media giants, seeking to discipline and control them, despite ironically decrying the clampdowns of repressive authoritarian governments.
French authorities haven’t framed their move against Durov in this larger political context — in fact, President Emmanuel Macron has insisted his government wasn’t involved in the arrest, saying: “This is in no way a political decision.” It’s a reassertion of the rule of law to the digital realm, as far as French prosecutors are concerned, with judges deciding whether Durov has been complicit in the sharing of child pornography, drug trafficking and money laundering by allowing his messaging app to be used for such purposes and being unhelpful to law enforcement.
Meanwhile, some Ukrainians, who have been campaigning for Telegram to be shut down in their country, think Durov should have fallen afoul of Western authorities for other reasons, and question whether he struck a secret deal with the Kremlin, helping Russian security agencies. For this, they point to what they claim is evidence of frequent travel by Durov to Russia — visits he has denied.
Nonetheless Durov’s arrest is a breathtaking escalation in the long-standing complaints against internet moguls, and how they’re not doing enough to moderate and police their platforms. The course of this case will have profound political and philosophical implications, and Durov’s arrest will likely goad the targeting of other big tech titans who — as far as critics and regulators are concerned — are unruly, far too ready to thumb their noses at authorities and profit from social harms, fake news, disinformation and illegal activity while mouthing platitudes about free speech and laughing all the way to the bank.
Social media indeed can be highly toxic, and the behavior of cyber-libertarian tech moguls like Elon Musk isn’t just obnoxious but dangerous, and these individuals shouldn’t have immunity. Even in the land of the free, there are limits to free speech. As Supreme Court Justice Oliver Wendell Holmes noted in 1919: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” However, it’s also the case that what has been deemed as disinformation — for example, the possible origins of Covid-19 — has, on occasion, turned out to be anything but, or is at least open to debate.
So, as the opening shots play out in disciplining social media platforms, curbing dangerous disinformation and ameliorating potential social harm, one might have more confidence in the right balance being struck if politicians and regulators were less ready to declare emergencies at every turn and had more determinedly rolled back the intrusive powers secured during previous panics.