The so-called LOPMI law, enacted in January 2023, has put France at the forefront of a group of countries taking a tougher stance against crime-ridden websites. But the law is so new that prosecutors have yet to secure a conviction.
As the law has yet to be tested in court, France’s pioneering effort to prosecute figures like Durov could backfire if its judges refuse to penalize tech bosses for alleged criminality on their platforms.
A French judge placed Durov under formal investigation last month, charging him with several offenses, including the 2023 charge of “complicity in the management of an online platform to enable an illicit transaction, in an organized gang,” which carries a maximum sentence of 10 years and a fine of 500,000 euros ($556,300).
Being under formal investigation does not imply guilt or necessarily lead to trial, but it does indicate that judges believe there is enough evidence to proceed with the investigation. Investigations can last for years before being sent to trial or dismissed.
Durov, who is out on bail, denies that Telegram is a “lawless haven.” Telegram has said it “respects EU laws” and that it is “absurd to claim that a platform or its owner is responsible for the abuse of that platform.”
In a radio interview last week, Paris prosecutor Laure Beccuau praised the 2023 law as a powerful tool to combat organized crime groups that increasingly operate online.
The law appears to be unique. Eight lawyers and academics told Reuters they were not aware of any other country with a similar statute.
“There is no crime in U.S. law directly analogous to that and none that I know of in the Western world,” said Adam Hickey, a former deputy U.S. attorney general who established the Justice Department’s national security cyber program.
Hickey, now at US law firm Mayer Brown, said US prosecutors could charge a tech boss as a “co-conspirator or accessory to crimes committed by users” but only if there was evidence that the “operator intends its users to engage in criminal activity and itself facilitates it”.
He cited the 2015 conviction of Ross Ulbricht, whose Silk Road website offered drug sales. U.S. prosecutors argued that Ulbricht “deliberately operated Silk Road as an online criminal marketplace … beyond the reach of law enforcement,” according to the Justice Department. Ulbricht was sentenced to life in prison.
Timothy Howard, a former US federal prosecutor who put Ulbricht behind bars, was “skeptical” that Durov could be convicted in the US without evidence that he knew about the crimes on Telegram and actively facilitated them, especially given Telegram’s large, mostly law-abiding user base.
“From my experience in the American legal system,” he says, the French law seems “an aggressive theory.”
Michel Séjean, a French professor of cyber law, said the tightening of legislation in France came after authorities became exasperated with companies like Telegram.
“It’s not a nuclear weapon,” he said. “It’s a weapon to prevent us from being powerless against uncooperative platforms.”
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The 2023 law has its origins in a 2020 French Interior Ministry white paper, which called for significant investment in technology to tackle growing cyber threats.
A similar law was passed in November 2023, including a measure for real-time geolocation of people suspected of serious crimes by remote activation of their devices. A proposal to activate the devices’ cameras and microphones so that investigators could observe or listen was rejected by France’s Constitutional Council.
These new laws have given France some of the world’s strongest tools to combat cybercrime, as evidenced by Durov’s arrest on French soil, said Sadry Porlon, a French lawyer specialising in communications technology law.
Tom Holt, a cybercrime professor at Michigan State University, said LOPMI “is a potentially powerful and effective tool if used properly,” particularly in investigations into child sexual abuse images, credit card trafficking and distributed denial of service attacks, which target businesses or governments.
Armed with new legislative powers, the Paris prosecutor’s ambitious J3 cybercrime unit, which is overseeing the Durov investigation, is now involved in some of France’s most high-profile cases.
In June, the J3 unit shut down Coco, an anonymous chat forum cited in more than 23,000 court proceedings since 2021 for crimes including prostitution, rape and homicide.
Coco has played a central role in a current trial that has shocked France.
Dominique Pelicot, 71, is accused of recruiting dozens of men in Coco to rape his wife, whom he had rendered unconscious with drugs. Pelicot, who is expected to testify this week, has admitted his guilt, while 50 other men are on trial for rape.
Coco’s owner, Isaac Steidel, is suspected of a similar crime to Durov’s: “Provision of an online platform to enable an illicit transaction by an organised gang.”
Steidel’s lawyer, Julien Zanatta, declined to comment.
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