Over the past few weeks, the confrontation between digital platforms and countries has taken a dramatic turn: Telegram chief executive Pavel Durov was arrested in France in August and Justice Alexandre Moraes of Brazil’s Supreme Court ordered the blocking of X, formerly Twitter, in the country the same month.

A tiny collection of oligarchs control more of the human race’s communications than has ever been possible before. They are, once again, drawn into the kind of confrontations with national governments that they are accustomed to losing – at the expense of their users Their cry of “my free speech” actually only means “my money”, and any reference to the free speech of their users is deception. Users always wind up with less freedom – because their governments do not act in their interest and the states always win while platforms care for little more than the bottom line.

But matters have came to a head.

Durov is in French custody and under criminal investigation. The French passport he was traveling on was given to him by President Emmanuel Macron, who apparently possesses a power to confer citizenship on the basis of personal approval. The investigating magistrates intend to charge Durov and others with offences involving facilitation of illegal activity, including money laundering and the failure to remove illegal content, such as child pornography, from Telegram channels.

Simultaneously, a conflict between Brazilian Supreme Court Justice
Moraes and Elon Musk’s X boiled over. Justice Moraes was granted sweeping power by his colleagues in the aftermath of the Brazilian presidential elections to order take-downs, account terminations and other measures to reduce the flood of misinformation stimulated by the “digital militias” of the defeated Jair Bolsonaro movement.

In April, Moraes ordered the termination of a small number of X accounts. Musk’s primary policy since buying Twitter has been to trumpet his lawfulness, giving himself noisy credit for following the law where he does business. This is much cheaper than going to court around the world to protect users’ free speech rights – a practice Jack Dorsey’s Twitter used to follow.

At the very time that Musk was alleging “censorship” while refusing the Brazilian request, he was compliantly shutting down accounts the Turkish president wanted silenced or those that the Indian government ordered. Whatever caprice caused Musk to balk in Brazil, he nevertheless adhered to the cheapest approach. Rather than paying lawyers to make arguments, he simply refused to obey court orders, shut X’s offices in Brazil and became, in the technical sense, an outlaw. Now, even that charade is over.

These two escalating stand-offs between sovereign nation states and immensely powerful persons epitomise the quandary in which governments now find themselves in. The bleating invocation of free speech rights by billionaires is baseless. Not even the US Supreme Court, at the highest pitch of respect for First Amendment rights, would allow a claim of expressive freedom to justify not appearing in a court where your company is present.

Until actual evidence is presented, it is not possible to know whether Telegram is liable for criminal communications occurring through its intermediation, or whether its chief executive can be held responsible under French law for the corporation’s conduct. But once again, even the world’s most scrupulous legal protections for freedom of speech would not defeat such liability.

Instead, once again, it is the users of these communications systems who will be made to pay for the conflict between public and private power. Telegram has always been based on deception. Durov’s system claims to protect privacy, but all of the text in its channels, and all of the personal messages that aren’t specifically initiated as “private chat” on the system are stored on Telegram’s servers as clear text, which means they can be turned over to the governments by Telegram, or stolen by covert means.

Durov has also cooperated with governments, selling out his users’ supposed privacy consistently. Perhaps, these are the services to France of which its president so approved. Durov has actively advised the public not to use Signal and WhatsApp’s competing services, claiming that their US origin implies an American backdoor. This is false. Signal’s end-to-end encryption is fully transparent, free software that every specialist and user can read and review. Its code is also used under free software licence by Meta in WhatsApp. They are secure in precisely the ways that Telegram claims but does not deliver.

In Brazil, Moraes responded to Musk’s outlawry by requiring all 20,000 Brazilian internet service providers – ISPs – to block access to X – he threatened any individual users in Brazil who interacted with the service using VPNs with legal liability and exorbitant fines. This absurd overreach has attracted near-universal condemnation from technology and free expression lawyers in Brazil and around the world. Now, Musk has complied with all of Moraes’s demands and he has authorised the restoration of X’s service in Brazil

But the chest-thumping in which all these parties are periodically engaged in shows the impossibility of proceeding on current principles. Governments are centralising and cultivating power with which to offset the centralised power of the platform companies. No parties, public or private, are actually attempting to deliver what the people demand: forms of communication that preserve and increase our rights while protecting individuals, families and communities against crimes and unlawful surveillance. Regulatory escalation will not achieve those results.

Instead, we as a society should be seeking to change the technologies we use to decrease both centralisation of private power and oppressive state control. We in the technology world know how that can and should be done. But neither the platforms nor the governments have an interest
in our freedom. Therefore the technologies the users need we ourselves must build on our own.

Mishi Choudhary is Founder, sflc.in. Eben Moglen is Professor of law, Columbia University.