Consultations on a Foreign Influence Registry

How difficult could it be? (Plenty)

The Globe and Mail had a prominent editorial on April 19, 2023, that urges the Government to get cracking on creating a foreign influence registry.

https://www.theglobeandmail.com/opinion/editorials/article-why-is-justin-trudeau-sowing-confusion-about-a-foreign-influence/

The implication is that the Government is dragging its feet, creating distractions in drawing attention to historical injustices around targeting ethnic communities, and isn’t really committed to the task.

From on high, The Globe editorial writers think the task should be simple. As the editorial puts it, the registry would be akin to a lobbying registry (Canada already has a Lobbying Act) “in that it obliges anyone who seeks to influence public officials on behalf of a foreign government or a foreign state-owned company to register with the government.”

OK, let me make things a little more complicated. Look at this language, take a breath, and ask some questions.  Here are the key words in this simple formula:  anyone; influence; public officials; a foreign government; a foreign state-owned enterprise.

Taken together, this is simply a recipe for a baggy monster that would be extraordinarily burdensome to manage, bound to have significant implications for Charter rights, capable of serious blowback consequences, especially for Canadian businesses operating abroad, and doubtful in its efficacy. Baggy monster because it is poised to capture so much, including “influencing” actions targeting an undefined group “public officials,” by anyone, on behalf of any foreign government.  

Would such a baggy monster really, as the Globe puts it “be a tool for stopping Beijing from harassing people in Canada.”  That strikes me as extremely doubtful. In any case, the Globe is making some important category errors. Harassing people is a serious national security threat. It is very distinct from influencing public officials. It is also distinct from another category of foreign interference that scarcely features in all the talk of Chinese election interference, which is espionage.

The starting point for the creation of any foreign influence registry has to be clarity about its objectives, scope, scale and intended efficacy.

All of these issues arose in a by-invitation session on creating a foreign influence registry that I attended on the same day as the Globe published its thought piece. The session featured other experts, including former national security practitioners, academics, business people, and senior officials from the Public Safety department and CSIS. This session is part of the process of roundtable discussions, closed and open, and invitations to the public to make submissions on a foreign influence registry, that are currently underway.

Its possible to be cynical about such as process, if you think it is all for show and that the Government has already baked its cake (or has no intention to stay in the kitchen). But I came away from three hours of discussion convinced that there will be a cake, but the ingredients are unclear, with lots of challenging questions and much work ahead. I’m not a cynic about policy making that involves stakeholders and the public. Be one if you like, but where that leads you is back into a world of hermetically sealed, paternalistic, trust-us decision-making. Ugh.

The discussion that I attended was held under a version of the Chatham House rule, which stipulates that no attribution of remarks can be made to individuals. I will abide, of course, by that rule. No leaker be.

Eventually, Public Safety will publish a “What we heard” report based on all its consultations.

What I want to do here is something on a miniature scale, but hopefully still valuable—a ‘what I heard.’  

First of all, creating a foreign influence registry is challenging and complex.  Canada is late to the game in creating one, yes, but this also bestows a benefit. We can learn from the efforts of other close allies, especially Australia (which is currently reviewing its 2018 legislation), the United Kingdom, which is debating amendments to legislation to introduce a foreign influence registry, and the United States, which has old foreign interference legislation introduced in the 1930s to deal with the threat of Nazi agents, that is shot through with exemptions. The American example may not be a model, but what the US is good at is enforcement muscle.  That’s a separate issue.

As we try to learn from allies, this will also help us keep in mind an important principle, which is that while Canada needs a customised/sovereign foreign influence registry to match our political circumstances and laws, it also needs to be, as one participant in the meeting said, in “lock step” with our allies.

On the core objective of a foreign influence registry, the Globe and Mail’s simplistic outlook is simply wrong. The Public Safety consultation paper produced to help frame the conversation, talks about dealing with “malign foreign influence.”  

https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/2023-nhncng-frgn-nfluence/index-en.aspx

What makes foreign influence “malign” is partly its covert nature; partly it is the guiding hand; partly it is the objective.

The term “malign foreign influence” may be apt. But its application needs further thought across all three aspects of the definition.  Covert may sound bad, but there are many legitimate reasons for pursuing covert arrangements, including to protect privacy interests, or business dealings, or to maintain a competitive advantage in research and development. On its own it is not enough and needs something more, perhaps to be twinned with “deceptive.” Covert and deceptive gets to a practice of ill-intentioned hiding.

How do we define the “guiding hand.”  The Public Safety consultation paper uses “foreign principal” as a term of art. It is wide-ranging, to include a foreign government, a foreign economic entity directed by a foreign government, a foreign political organization, similarly directed by a foreign government, or an individual or group acting at the behest of a foreign government. Put more simply, a foreign principal is a foreign government itself, or non-government entities working for a foreign government as proxies.

There are three issues posed by this definition. One is that it is open-ended, or “country agnostic” when it comes to defining a concerning foreign government. It captures all governments, friends, allies, foes alike. It creates the potential for a massively-sized influence registry with all the downsides involved in registering and managing such a process.  Do we really want to capture foreign influence conducted by close allies? Some may say yes, ring them all. Others would say that the concerning states are well known and publicly identified—China, Russia, Iran and North Korea— and should be listed. There may be others of concern that have not been publicly called out. But still, the list is small. Why not just identify and target a small set of adversarial states? The counter-argument is that this amounts to a black-list and could have serious consequences for Canada’s conduct of foreign relations, trade and development.

A halfway house may be to keep the country-agnostic approach but in practice use the registry only for adversarial states known to engage in malicious (covert and deceptive) foreign influence. The downstream challenge here involves the requirement to register. If it captures everything, even if there is no intent to sanction, how is that helpful? How would it be perceived by the public.

A second problem concerns bundling economic entities into the foreign influence registry as potential proxies. It is unclear to me what problem is being solved here. It is not the conduct of economic espionage, as serious as that is. We already have legislation in section 19 of the Security of Information Act (passed in 2001) to protect against economic espionage.

Problem three. How can we be granular enough about the meaning of a “an individual or group acting at the behest of a foreign government?” What does behest actually mean?  How can we avoid overreach and the law of unintended consequences? How to square this with free speech protections under the Charter (section 2) which are not absolute, but are rightfully strong.  Possible solutions include an explicit harms test to the national interest, or national security, and/or a monetary and contractual dimension to flesh out “behest.” Some combination of these thresholds is clearly needed.

The “illustrative scenario” provided in the Public Safety consultation paper, involving a “prominent Canadian academic” who writes an op ed advocating a position favourable to a foreign government, after being asked to do so, is a perfect example of an ill-defined concept lacking thresholds, and rubs up against free speech rights. We might want to pay attention to the foreign state official who makes the request and can deploy existing tools against such influence operations rather than target downstream activities.

I discussed the problems with this example in a previous substack column:

Foreign influence transparency registry

Alongside the challenges posed by the effort to define malign foreign influence discussed above is the issue of the requirement to register. The first thing to note is that the requirement is voluntary and that it is up to individuals and entities to register; the sanctions element comes in if an individual or entity does not register but is discovered to have engaged in malign foreign influence.

So what would a registration decision look like, from the outside peering in? If one turns to the Public Safety consultation paper, you find an initial concept called “arrangements to influence Canada.” The “arrangements” provide the test for a registration requirement. Here we run into a real problem of lack of definitional rigour.

According to the Public Safety document an “arrangement” requiring registration “could be explicit or implicit.”  I am not sure what exactly implicit would mean but it suggests an arrangement with no contractual basis. It also says that payment need not be part of the arrangement. Most puzzling is the third element of the definition, which states that “influence activities may not have taken place yet for the arrangement to be registrable.”  This sounds eerily like “pre-crime.” (We all saw the Tom Cruise movie, right?) Again, in this definition there is no harms test.

There is no doubt that a definition of registrable activities will be highly challenging. The current one doesn’t pass muster. It may be impossible to find a satisfactory one that would be sufficiently smart and tightly focused. 

To lessen the challenge, it may prove necessary to shift attention from activities to classes of actors, who would be subject to registration if engaged with foreign “principals.”  Such classes would be identified on the basis of knowledge and political access which would provide for the potentiality of harm to Canadian national interests/national security. Such classes might include public office holders; public servants or others who are persons permanently pledged to secrecy under the Security of Information Act; law enforcement officials; members of the military. In most cases there would need to be time limits applied to their requirement to register (e.g. holders of public office over the past ten years, or some such).

As efforts proceed to define the inner workings of a foreign influence registry, it is important to be clear about the objective; to ensure that public expectations are managed; to have a means to evaluate the efficacy of the registry, alongside a requirement for periodic review of any legislation, and to have transparency requirements in the form of annual reporting to Parliament.

Although the objective is to tackle “malign foreign influence,” it has to be recognised that covert and deceptive activities conducted by foreign state adversaries will continue. A foreign influence registry is not a full-proof national security tool. What it can do is try to force greater transparency about linkages between foreign states actors and Canadians, in part as a deterrence to witting linkages, and in part to cast greater light on the unwitting dimension.

Public education about both the nature of the foreign interference threat in all its forms and the narrow field of action for an influence registry will be vital to success.

Measures of efficacy will be particularly difficult, not least in the face of possible gaps between overly high public expectations, likely focused on visible enforcement, and the more difficult to measure impacts of enhanced public understanding and deterrence effects.

Part of the solution is to strengthen congruent legislation and its enforcement, especially the Security of Information Act.

https://laws-lois.justice.gc.ca/PDF/O-5.pdf

The SOIA was passed in 2001, at a time when terrorism threats were the overriding national security concern. It has not been revised since. Section 19 of the SOIA, referring to economic espionage, could have a foreign influence element bolted on, thus removing the need to duplicate this in the registry provisions.

Section 20 of the SOIA intertwines foreign influence with terrorism in ways that are no longer helpful. As it currently stands, s20 reads as follows:

“Every person commits an offence who, at the direction of, for the benefit of, or in association with a foreign entity or terrorist group, induces or attempts to induce, by threat, accusation, menace or violence, any person to do anything or to cause anything to be done.”

This is followed be a harms test.

While this captures intimidation of diaspora communities, the statutory definition of foreign influence needs to be separated out from terrorist related offences and expanded on.

Ultimately the challenge for a foreign influence registry is to find a smart solution that is as tightly focused as possible and can be efficacious, and not just political theatre. A foreign influence registry, at the end of the day, is a sanctions regime. We have quite a bit of practice with sanctions in the case of the current Russian war against Ukraine. Let’s draw on that. Brain-storming will Canadians will help; ensuring that we learn from allies about best practices (and worst) and acting in lock step with them to present a united front will be vital.

Rushing to a fix, on an assumption that the fix is easy, will land us in a bad place. Take a breath, Globe and Mail.