The Vanishing Foreign Interference Registry?

Or, Headed for the Shelf?

The white-hot urgency which once attended the issue of  creating a foreign interference registry (sometimes impolitely referred to as a “foreign agent” registry) seems to have vanished from political and media agendas.  That may not be a bad thing. Complex issues are rarely well solved by such insistent drum beats. Creating a foreign interference registry through legislation is not as simple as it might seem, or even as worthwhile.

Behind the scenes, the federal government has been at work over the last several months to “close gaps” in Canada’s capacity to meet the foreign interference threat.  Minister LeBlanc was tasked by the Prime Minister with producing a report on government progress back in April 2023. Two new initiatives were mentioned in his report to improve governance of the issue within the federal government: the creation of a “National Counter Foreign Interference Coordinator” at Public Safety, and the establishment of a “Protecting Democracy” unit at the Privy Council Office.  Both reform pieces can be credited back to recommendations made by the National Security and Intelligence Committee of Parliament in a 2019 report, which was paid little heed at the time. How these two new units, both financed in recent budgets, will divvy up the work and coordinate their efforts is not clear. Their work has not been public facing to date, but at least the National FI Coordinator is meant to produce public reports at some stage in the future, alongside annual public reports from CSIS.

https://www.canada.ca/en/democratic-institutions/services/reports/countering-evolving-threat.html

Minister Leblanc’s report in April 2023 also called attention to the launch of public consultations on a foreign interference registry,  and indicated that consideration was being given to amending key pieces of national security legislation, including the CSIS Act, the Criminal Code and the Security of Information Act.

We are now, seven months later, starting to see some of the fruits of this work.

The public consultations on a foreign interference registry were begun back in March 2023, based on a consultation paper. The process included an online portal for public submissions in response to a questionnaire, stakeholder consultations, and discussions with community organisations.  The consultations closed on May 9.

You can read the consultation paper here.  It is important as a way of understanding how the federal government was framing the issue as it went into the consultation process:

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

A recently released “What we Heard” report gives a flavour of the feedback received. Public responses to the questionnaire were not overwhelming in number—Public Safety received 932 responses. More consequential may have been the stakeholder consultations, which were extensive. I took part in one of these, organised by the Centre for International Governance Innovation, with participation from senior government officials. (Just for the record, I also made a submission responding to the questionnaire).  As the report indicates, “Overall, respondents were in favour of establishing a registry.” Beyond that, it indicates fractured views on what exactly a registry would look like.

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

There are multiple challenges faced in the creation of any “Foreign Influence Transparency Registry”  (FITR) as the terminology now goes.  This was reflected in the discussion document circulated for consultation purposes and in the responses summarized. Part of the challenge is the effort to zero in on “malign foreign influence,” which, as the consultation paper noted, “is a particularly complex challenge to address,” in part because such malign campaigns are “designed in a manner that tries to circumvent registration requirements set out in legislation.”

The starting point, then, is a recognition that a foreign influence registry confronts the dilemma of wanting to go after ‘bad actors’ working for adversarial foreign powers by bringing covert and deceptive activity to light through a public registration requirement. In practice, it is unlikely to be able to achieve such a purpose. The covert will remain covert; bad actors will not voluntarily “register. ” 

What a FITR then becomes, in the face of this reality, is an instrument of deterrence, intended to discourage people in Canada from becoming willing instruments of a foreign power as that power advances its own political agenda. There will always be people with divided loyalties, torn between their homeland and Canada; and there will always be “useful idiots” willing to do propaganda work for a foreign power. They turn up, shock and horror, even in academia. There will always be people drawn by financial inducements or caught by the allure of working in the realm of great power politics. And, of course, there will always be forms of legitimate foreign influence campaigns and of lobbying in support of them. It is not the work of a foreign influence transparency registry to try to capture the legitimate side.

When trying to come up with a hypothetical example of malign foreign influence, the best the consultation paper could do was a “scenario” note about an academic being prompted by an unnamed foreign government to write an op-ed opposing an element of Canada’s foreign policy.  That’s it?  Come on. While it is pleasing to think that government officials might regard an academic op ed as a dangerous instrument of knowledge for public consumption, one has to ask how a foreign influence transparency registry would try to clean up an already-polluted marketplace of ideas while respecting foundational freedom of expression principles? How any such effort would be a worthwhile endeavour? Seems doubtful to me.

Deterrence can be a useful principle, but only if it does not remain inchoate. What might deterrence through transparency actually mean? This is the next challenge presented by a foreign influence registry.  How do you define the group you want to deter through public naming (and shaming), and possible financial and criminal sanctions? This is the group that might be drawn into what Public Safety describes as activities involving “deceptive, coercive, threatening and/or illegal” behaviour acting on behalf of a foreign state or proxy. Even this list operates on an ascending scale of seriousness—from deceptive to threatening or illegal. Illegal is illegal by the light of the criminal code. But what do we mean by “deceptive” exactly, or by “coercive,” or even “threatening,” especially when applied to public communications and social media?

The consultation paper offers no guidance in this regard.

Does it help to identify the foreign actors of concern, with deterrence in mind? Public Safety rejects this approach, arguing against the creation of any public “blacklist” of foreign states and their proxies, in favour of what it calls a “country agnostic” approach.  This is an understandable argument, not least to guard against diplomatic repercussions and possible divisiveness in Canadian society (note—any such list would not be restricted just to China, or China and Russia).

The “country agnostic” approach was favoured in responses to the public consultations but threatens in turn the creation of a bureaucratic baggy monster encompassing the seeking out of potential “malign foreign interference” on behalf of Canada’s allies, friends and neutrals. This might even be a contradiction in terms.  It was notable in the “What we Heard” report that some respondents wanted to see the FITR extend to multinational corporations, on the one hand, and, on the other, academics receiving foreign government grants.  What can I say--Yikes.

What if we turn the telescope around from foreign interference actors to the possible subjects of their influence campaigns?  Does this help define the scope of a foreign interference registry?

The Public Safety consultation paper listed some targets where “malign foreign interference” would require registration. These included Parliamentary lobbying (already covered by the Lobbying Act); and general political lobbying (also already covered by the Lobbying Act and the Canada Election Act). The paper also mentioned “disbursement activity,” e.g. money or gifts, but this was confounded by the notion that such disbursement activity would not be a prerequisite for registration. The consultation document then dived into what it called “communications activities,” suggesting that a “communications activity is registrable if the activity is undertaken on behalf of a foreign principal for the purpose of influencing Government or public opinion.”  This strikes me as opening up an enormous can of worms in terms of trying to regulate expression in Canada. The concern is clearly the circulation of disinformation. But a foreign interference registry is no way to tackle it or prevent it.

OK, if there is not much precision or light there, how about considering how connections between foreign entities and persons engaged in “malign foreign influence” might be described.  Here the Public Safety consultation paper was less than helpful. It talked about “arrangements,” that could be “explicit or implicit and would not need to have been made in Canada.” I can only help wonder what an “implicit” arrangement might be? Money changing hands was not seen as a necessary element of the registrable “arrangement.” The registration process could even lean, somehow, into the future.  Consider this from the Public Safety paper:

“Influence activities may not have taken place yet for the arrangement itself to be registrable.”  What? Do I hear pre-crime?

So if a FITR looks increasingly like a bad idea on the basis of current conceptions, what solutions are available to better protect Canada from foreign interference threats?

Some of the answer lies in increased intelligence and law enforcement work—essentially more resources for counter-intelligence,  for information sharing, and for threat reduction  measures available to both CSIS and the RCMP.  Some of the answer lies in stronger outreach by the federal government to diaspora communities directly affected by foreign interference. A strong marketplace of ideas is a key component, a marketplace that needs to ensure the livelihood, for example, of independent media serving diaspora communities. If the concern is foreign interference targeting other levels of government and local political processes, the remedy lies in better coordination and information sharing between the feds and their provincial, territorial and municipal counterparts.  Political parties have a role to play in tightening up their processes for party nominations. Elections at sub-national level may need closer monitoring.

FITR imagines a sanctions regime, part financial penalties, part criminal. Rather than go that route it might be more effective to strengthen existing legislation that addresses foreign interference, including the CSIS Act and the Security of Information Act.

A deep dive into both pieces of legislation is promised in a recent consultation process launched by the Department of Justice. I plan to look at this in more detail in a future substack column.

In the meantime, the existing state of thinking about a foreign influence registry, including responses to the consultation, does not pass muster.  It threatens, in its breadth and vagueness, to create a regime of overreach, with significant bureaucratic burdens, threats to free expression and privacy rights, and little to no practical pay-off, beyond an ability to say we can tick a box in terms of matching our allies. It might best to set it aside for now and see what might be accomplished by other reforms.

I hear only silence on future plans for a foreign influence transparency registry. Maybe I am not picking up the signals. Maybe it has been shelved. No crocodile tears, if so.