Musk and Durov are facing the revenge of the regulators

The crackdowns, which come months after the United States passed a law that could lead to the banning of TikTok, herald the end of an era. Not the social media era, which is still going strong. But the era in which tech titans enjoyed free rein to shape the online world — and a presumption of immunity from real-world consequences.

While freewheeling internet companies have long clashed with authoritarian regimes — Google in China, Facebook in Russia or pre-Musk Twitter in Turkey — Western governments until recently generally did not regard social media and the vision of free speech they promoted as being fundamentally at odds with democracy. Politicians and regulators recognized there was bad stuff on the internet, decried it and sought ways to mitigate it. But banning entire social networks or arresting their executives simply wasn’t something liberal democracies did.

Now, for better or worse, it is.

“The pendulum has swung from public discourse being all about ‘internet as a tool for freedom’ to ‘internet as a threat,’” said Daphne Keller, director of the Program on Platform Regulation at Stanford University’s Cyber Policy Center and a former Google lawyer. “So there are far fewer other governments, media, civil society, etc., taking the platforms’ side.”

Does that represent an ominous turn toward repression, or a long-overdue reassertion of the rule of law in the digital realm? The answer might depend on one’s politics. But it also hinges on the legitimacy of the charges in each case and the proportionality of the countries’ responses.

Musk and Durov style themselves as free-speech warriors fighting a creeping global censorship complex. To their critics, they’re charlatans who use free speech as an excuse to profit from unsavory and illegal content.

On closer inspection, neither case lends itself to a simple good-vs.-evil frame.

The speech that Musk is risking one of X’s largest markets to defend is that of Jair Bolsonaro supporters who pushed false narratives of election fraud after the right-wing president lost his reelection bid — a campaign that culminated in an attack on federal government buildings in Brasília. Both before and after that violence, which some considered an attempted coup, Brazilian Supreme Court Justice Alexandre de Moraes has aggressively pursued social media outlets — including Telegram and, more recently, X — for posting alleged fake news and “anti-democratic” disinformation.

Musk and X have fought back, repeatedly and publicly refusing to comply with orders to suspend accounts and take down content. The final straw for Moraes came when X defied a demand to designate a legal representative in Brazil whom the government could hold responsible — a demand historically associated with authoritarian governments seeking to intimidate companies.

Musk portrays his stand as a principled one against political censorship. Skeptics counter that Musk is merely defending his allies; Bolsonaro has close ties to former president Donald Trump, whom Musk is backing for reelection. In contrast, X has reportedly capitulated to similar demands from India and Turkey.

Durov, meanwhile, stands accused of complicity in an array of illegal activities that transpired on his messaging platform, including organized crime, drug and weapons sales, and the sharing of child sexual abuse material. His lawyer says it’s “absurd” to hold a platform or its boss responsible for its abuse by some users. That argument might be more convincing if Telegram weren’t notorious for turning a blind eye to such abuse and shielding the perpetrators from prosecution.

Arresting the CEO is a blunt reaction, and experts say some of the charges against Durov risk overreaching. Keller said she’s hopeful that justice will be served one way or the other as the legal process plays out.

“The E.U. passed a carefully considered framework” for internet platforms, she said. “I think what the French prosecutor is doing either fits into that or, if it doesn’t, will be stopped by it.”

By contrast, Keller said, “Brazil has a Supreme Court justice seemingly gone renegade.”

The United States’ crackdown on TikTok differs from France’s Durov prosecution and Brazil’s X ban in that it was motivated more by the country’s distrust of China than anything in particular TikTok allegedly did wrong. Far from flouting American internet regulations — which are nearly nonexistent — TikTok appeared eager to appease, offering to give the Biden administration control over its U.S. operations.

The administration refused the offer, instead signing into law a bipartisan bill requiring TikTok’s Chinese parent company, ByteDance, to sell the app or see it banned from American app stores. The move echoed a similar ban of TikTok and a host of other Chinese apps by India four years ago.

In the past, the United States has condemned foreign governments’ clampdowns on social media companies as repressive. Whether the TikTok law was justified, it likely undercut the force of America’s rhetoric on that front, emboldening allies and enemies alike to take tougher stands.

Keller cautioned against the notion that countries seeking to bring tech giants to heel is a new phenomenon. She pointed to a contretemps between Yahoo and France as long ago as 2000 and noted that Europe is “a decade into the techlash,” while Brazil jailed a Facebook executive in 2016.

Still, she acknowledged the vibe shift. With impudent tech leaders such as Durov and Musk in hot water abroad, mainstream giants such as Google and Meta seem to be “in compliance mode,” she said. Take for example Meta CEO Mark Zuckerberg’s deferential letter last weekend to House Judiciary Committee Chairman Jim Jordan (R-Ohio), who has been investigating the firm.

Durov and Musk may yet wriggle out of their respective jams. (So could TikTok, which is challenging the divest-or-ban law in court.)

The real concern is not that some internet leaders might finally face serious consequences for violating various nations’ laws. It’s that those countries’ zeal to rein in what they see as tech’s rogues could lead to laws or norms that squelch legitimate forms of online expression.

France’s charges against Durov include some that suggest it’s criminalizing encryption, and Brazil’s initial order against X appeared to sweep up virtual private networks. Both are key tools for online privacy that have many uses beyond Telegram and X.

At the very least, though, high-flying tech leaders will have to think a bit more carefully from now on about which countries’ markets they’re willing to lose access to — and whose soil they’re on when they step off a plane.