Foreign influence transparency registry

Or, defining "malign."

Public Safety has opened a consultation process with regard to the establishment of a “Foreign Influence Transparency Registry.” This was promised by the Public Safety Minister, Marco Mendicino, last December, but the process has been accelerated in response to media coverage of leaks regarding Chinese election interference and political pressure on the government to show that it is doing something about the problem.

https://www.cbc.ca/news/politics/consult-foreign-registry-mendicino-1.6672110

Submissions by members of the public can be made up until May 9.

https://www.canada.ca/en/services/defence/nationalsecurity/consultation-foreign-influence-transparency.html

It will be fascinating to see what volume of submissions come in, who contributes, and what the key points might be. I expect that Public Safety will issue a standard “What we Heard” report in due course. When, will depend on the volume and nature of the submissions. A foreign influence transparency registry could be established by regulation, although legislation would be the better and safer bet and would allow Parliament an opportunity to weigh in through Committee hearings. It will probably be well into late 2024 or even 2025 before an registry is actually created.

Aside from encouraging readers to make submissions, if they so desire, I wanted with this column to see how Public Safety has framed the issue. For that purpose we turn to the “Public and Stakeholder Consultation Paper.”

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

The first point the consultation paper makes is that the forms of foreign interference that need countering do not include “normal activities undertaken by foreign states to exert influence, such as legitimate lobbying, advocacy efforts and regular diplomatic activity.”

What a foreign influence registry would target is something the consultation paper describes as “malign foreign influence.” Such “malign” activity is distinguished by being “covert or non-transparent” and is designed to serve the interests of a foreign “principal.” That term also has a definition. A foreign principal is not restricted to a foreign state but also encompasses a foreign economic activity, foreign political organization, or “an individual or group with links to a foreign government”—in other words a proxy.

The consultation paper provides two “illustrative scenarios.” One involves an individual employed by a government who “makes an appeal to the Government of Canada opposing an approach to a particular international issue.” The appeal is transparent about the employment of the individual. This is routine diplomacy and does not constitute malign foreign interference.

The other scenario involves a “prominent academic “ who writes an op-ed opposing government policy on some international issue. The academic is encouraged by a foreign government in this endeavour but does not disclose a relationship with an official of a foreign government. Lack of transparency casts this effort into the malign foreign interference basket. Ouch. We can call this the ‘useful academic idiot’ scenario (it happens).

While it is perhaps gratifying that the government thinks that academics who write op ads are real influencers, the issues the useful idiot scenario raises are many. They include the fact that the example provided of attempted interference with people’s thinking does not catch the most dangerous forms—namely disinformation conducted through social media channels online and more local news forms, especially those that serve a distinct community. The scenario also does not consider the question of the seriousness of any harms that might result. It does not differentiate between foreign governments (or principals) who are allies or friends of Canada, or fellow democracies, and foreign government/principles that are identified as adversaries.

Just to give a silly example. I, as an example of a useful idiot, could be called up by the US Secretary of State with a suggestion that wouldn’t it be helpful to Canadian readers if I wrote an op ed explaining the Safe Third Country agreement and why the United States is rightly determined to sustain its principles and can’t fix the Roxham road situation for Canada. I am provided with some useful statistics and studies by the U.S. government. Let’s say I thought the suggestion was a good idea and decided to write an op ed; and let’s say it was published (chances are always low). I don’t disclose that the idea was first planted in my mind by a US official. Maybe I have fooled myself into thinking that this brilliant idea was really mine in the first place. Would that really be an example of malign foreign influence? What harm is being done amidst all the likely discourse on such an issue?

On the other hand were I in close contact with the Russian embassy in Ottawa and encouraged to write an op ed by the Russian ambassador or an intelligence minion (there will be many posted there) to the effect that Russia is not conducting any war crimes in Ukraine, or that Russia is waging a purely defensive war against NATO aggression, or some other piece of Russian propaganda. Let’s say I did so without disclosing my links to the Russian government, and was paid by a Russian official for my efforts (and asked to sign the usual “chit”). That would be malign foreign influence. The difference is not in the covertness of aspects of the undertaking but in what foreign government prompted the action and in the potential seriousness of the harm done to public discourse.

This begs the question of whether such an influence register needs a listed governments component. The fact of the matter is that foreign interference against Canada is only conducted by a handful of states, most of which have been, or could be named. The list would be similar in nature to the current terrorist entities list and would have to be kept evergreen and be publicly available.

The ‘useful idiot’ academic scenario also begs the question of whether a registry needs a harms test or “threshold” of some kind, as currently exists in the Critical Election Incident Protocol (a.k.a “The Protocol”). The intention would be to avoid too much intrusion into free speech principles.

The necessity that any new legislation to establish a foreign influence registry be in compliance with the Canadian Charter of Right and Freedoms is spelled out as one of the guiding principles behind any such creation. I think there are real pitfalls here, especially with regard to s2 rights of the Charter.

Section 2 (b) states that “everyone has the following fundamental freedoms:

“freedom of thought, belief, opinion and expression, including freedom of the press and other media of expression.”

This is going to be a high hurdle for a lawful foreign influence registry. For an analysis of the implications of s2 and its treatment by the courts, see:

https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art2b.html

What else does the Consultation paper say about principles? It lists five additional ones: transparency and awareness; deterrence; detection; alignment with democratic partners and minimal administrative burden.

Two of these principles have some merit: the idea that a foreign influence registry along with sanctions of some kind for non-compliance might serve as a deterrent for some malign influence activities; plus the value of acting in coordination with allies, especially to underscore cooperation and common approaches to threats among Five Eyes countries.

But for the rest, we run into a paradox at the heart of any such scheme. The intention behind a registry is to counter the threat of foreign interference, yet it acknowledges that what it is trying to counter is covert and deceptive activity. A public registry is unlikely to capture such covert activity, except at the margins. It is also bound to have some significant administrative costs, in its design, its launch, its maintenance and its adaptation to evolving threats. Could those costs be better served applied to existing mechanisms for detection, principally at CSIS, the RCMP and Global Affairs?

Of course, Canada can afford to do both, spend to create a foreign influence registry and bolster the detection capacities of existing security agencies. But sometimes new institutional creations, especially those in the public eye, can vacuum up resources and attention in ways that turn national security spending into a zero-sum game.

The Consultation Paper goes on to identify key design elements of a foreign influence registry. All have problematic elements.

“Arrangements to influence Canada” is one of the proposed design elements. The ideas behind a definition of “arrangements” is to establish the parameters that would require registration by a person acting on behalf of a “foreign principal.” Quite apart from the paradox of asking persons to publicly register to conduct clandestine activities, the definition of arrangements is very loose. It includes arrangements that are both explicit and “implicit” (whatever the latter means), that do not require a financial element, and could be forward-leaning to include influence activities that have not yet taken place. There are some head-scratchers here.

A second design element is “registrable activities”—in other words types of activities to exert malign foreign influence that would result in an obligation to register or face sanctions. But we already have laws to protect Canada from undue influence exerted against public officer holders and Canadian politicians. So registrable activities would have to dive into speech expression and communications more broadly. That would be tricky in terms of Charter protections, even while it addresses the problem of potential disinformation operations and malicious efforts to target members of certain groups.

A third category is “exemptions.” Here the government is clearly trying to curtail the scope of a registry but the examples it offers are largely of things that by definition do not apply (including diplomatic activities and provision of legal advice).

Information disclosure, a fourth design element, also speaks to the paradox of a public registry that seeks to curtail deliberately covert and deceptive activity. Information disclosure requirements could serve to drive such activity even further underground.

Finally, there is compliance. The consultation paper makes the valid point that a registry without teeth is of little value, and imagines a sliding scale of penalties from the issuance of notices, to administrative monetary penalties, to criminal sanctions. All fair enough, but it adds to the resource burden involved in the creation of a foreign influence registry and points towards significant litigation action.

The question that has to be asked about a foreign influence registry is whether the game is worth the candle? Is any such registry primarily a form of deterrence theatre for the Canadian public and a means to maintain ally-worthiness, with limited capacity to actually impinge on foreign malign influence operations? Is the expenditure of resources and talent on the registry worth it, especially if it draws away from efforts to enhance the detection, investigation and disruption capacities of existing security and intelligence agencies?

A related question is whether a foreign influence registry can be sufficiently tightly drawn to avoid fouling the Charter, prevent high resource costs, establish reasonable expectations, yet have some practical effect. The answer may be in ensuring that the focus is not on designated activities but on classes of persons, to include those with political special access, security knowledge, or military skills. There are elements of the Australian legislation, introduced in 2018 (The Foreign Influence Transparency Scheme) that might serve as a model.

https://www.ag.gov.au/integrity/foreign-influence-transparency-scheme

Perhaps we could all agree on the following?:

that we don’t want former political office holders to be engaged in foreign influence operations by listed adversarial nations

that we don’t want any persons who are deemed “permanently pledged to secrecy,” under the provisions of the Security of Information Act, after leaving the employ of the federal government, to be engaged in foreign influence operations by listed adversarial nations

that we don’t want former members of the Canadian armed forces to be engaged in support of the capacity building of adversarial nations

Where a foreign influence registry scheme might not be able to usefully go would be in tackling disinformation and misinformation activities designed to serve a foreign power, and in addressing financial flows to support foreign influence. These problems might need to be addressed by other means.

Let’s see what Canadians think.