As the world continues to grapple with the effects of COVID-19, Canadian security services have flagged a pandemic of a different kind: that of hostile states conducting malign influence and interference campaigns targeting individuals and institutions on Canadian soil. As Canadian Security Intelligence Service (CSIS) director David Vigneault cautioned as recently as February 2021, factors such as globalization and the proliferation of technology have only enhanced the “scale, speed, range, and impact” of these campaigns.

While countering these threats will require wide-ranging policy responses spread across the spectrum of government and the private sector, the outlines of certain reforms have already begun to take shape. On April 13, 2021, Private Member’s Bill C-282 (titled “An Act to establish the Foreign Influence Registry”) was introduced in the House of Commons. This proposal mandates the creation of a Foreign Influence Registry to hold returns filed by individuals and entities that operate on behalf of foreign governments and political organizations to influence Canadian policy processes.

These returns must contain details relating to the identities of the concerned individuals or entities (referred to as agents) and their foreign principals, as well as details relating to the financial terms of the principal-agent relationship. While it’s a crucial first step in beginning the debate around counter-influence policy and legislation, serious questions must be asked about the proposal and if it will be enough to counter increasingly sophisticated threats.

Casting a spotlight on hidden channels of foreign influence

Targeted at improving transparency over lobbying-like foreign influence activities, C-282 follows the approach of existing frameworks found in the United States and Australia, and under consideration in the United Kingdom and Taiwan, among other jurisdictions.

While these frameworks vary widely in scope and substance, they all broadly aim to bring transparency to the conduct of lobbying, opinion formation, advocacy, public relations and similar activities. Most often, this objective is sought to be achieved through two primary mechanisms.

First, as with Bill C-282, agents acting on behalf of foreign principals must register and make disclosures around the existence of such relationships as well as the activities conducted under them. Second, many frameworks also require agents to make conspicuous disclosures of such relationships in any material they disseminate on behalf of their principals. Taken together, these requirements are intended to expose otherwise hidden channels of influence and ensure targets are made aware of these efforts.

As Canada begins to consider the issue, it should look to experiences abroad, but also keep in mind the shortcomings of these efforts. For instance, the U.S. Foreign Agents Registration Act (FARA) – the de facto standard for such legislation – has enabled unprecedented insights into the conduct of foreign lobbying.

However, it has stagnated from a legislative standpoint and, today, suffers from well-documented flaws that threaten to undermine its effectiveness or enable its potential abuse. In considering these complex issues, the Canadian legislature can also rely on past debates in the House of Commons that have discussed FARA in the Canadian context.

However, in its present form, when compared to these global benchmarks, C-282 suffers from at least three significant issues that will compromise its ability to counter foreign influence in the Canadian context. While much of the bill mirrors provisions of the federal Lobbying Act – which other parliamentarians consider strong – for the purposes of this analysis it is assumed that C-282 extends to individuals and entities not covered by existing legislation. In other words, it is viewed in isolation and on its own merits.

Narrow scope

Most critically, the proposed act is extremely limited in terms of the range of influence activities it aims to cover. Failing to recognize the diverse targets and channels of modern campaigns, the bill applies only to agents who participate in (or arrange) meetings with government on a narrow spectrum of issues. Unlike comparable frameworks abroad, no obligations apply in relation to influence aimed at other common targets including the public, private sector and non-governmental organizations. This key shortcoming will guarantee that the bill applies only to an extremely narrow slice of the overall influence and interference spectrum identified by agencies including the Canadian Security Intelligence Service (CSIS).

Second, the narrow scope of the act is compounded by the manner in which it operationalizes transparency. It mandates an extremely limited set of returns to be filed by covered agents. Agents are only required to file basic information concerning themselves, their foreign principal and the financial terms of their representation. No disclosures are required about the objectives of the representation, the ongoing activities of agents – or the targets of disseminations (for example, by labelling material distributed on behalf of foreign principals).

Overall, this will provide extremely limited information about the day-to-day conduct of foreign agents in Canada. To enable a more granular study of the threat – and to adopt specific mechanisms to deter it – agents must be required to make much more detailed disclosures on an ongoing basis. As with the Lobbying Act, this must – at a minimum – include disclosures relating to advocacy, methods of engagement and specific targets. Anything less will result in an unnecessarily narrow framework that does little to bring transparency to foreign influence.

Lastly, C-282 is also limited in that it only applies to agents acting on behalf of principals located in countries specifically designated by the Canadian government. In other words, it does not apply to foreign influence writ large. While politically expedient, this is problematic from a broader policy perspective as it opens up the framework to claims that it is discriminatory and unfairly targeted at certain countries.

This can undermine legitimacy and even result in issues under international law. In terms of effectiveness, such an approach opens up the framework to being gamed – for example, through the use of proxy principals from third-party states who do not have to file returns under the framework. If Canada is truly concerned about influence emanating from specific foreign sources (such as those flagged by CSIS), this can form part of enforcement priorities or resource allocation at the implementation level. It is, however, questionable whether the cost-benefit analysis favours such a limitation being hard coded into the statute.

These are but a small sample of the issues that are likely to plague C-282 if enacted in its current form. A more balanced agent-registration framework must also contain exemptions from compliance where appropriate – for instance, in relation to legitimate and low-risk activities including in commercial and non-profit spheres. At the same time, it must also be only one of several broader policy reforms that aim to address other gaps that can be exploited by malicious actors. This will, at a minimum, require a review of other legal frameworks including those relating to espionage and election law, as well as sectoral regulations in other vulnerable domains including education, finance and legal practice.

Despite being a private member’s bill that is unlikely to pass in its current form, C-282 is notable in that it sets out a benchmark, however inadequate, to begin discussions around the broader policy concerns. It adds to the existing and evolving discourse around the broader issue, and presents an outline of what a comprehensive foreign influence registration framework can look like.

After all, a final framework that is not the product of evidence-based discourse, wide-ranging stakeholder input and tailoring to the Canadian context, is likely to be all but a paper tiger in effectively countering unwanted foreign influence. Worse than not having a statutory response to foreign influence is having one that purports to address the threat but overpromises and underdelivers.

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Tarun Krishnakumar
Tarun Krishnakumar is a consultant researcher with the Foreign Influence Transparency Initiative at the Center for International Policy, Washington, D.C. He is an attorney admitted to practise in the U.S. and India.

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