A foreign influence transparency registry could cause more harm than good
We should instead be looking at the problems the registry is trying to address and asking if the proposed solution creates more harm than good.
The federal consultation paper points to harassment and intimidation of Canadians as one of the most troubling forms of foreign interference, but these acts are already offences under the Criminal Code. If a foreign actor or proxy engages in such behaviour, that actor should be prosecuted. That such acts may now be taking place with impunity suggests the need for stronger law enforcement or stronger laws, not this kind of registry.
The consultation paper then provides a specific example of “malign foreign influence” whereby a Canadian academic is asked by an individual employed by a foreign government to write an op-ed opposing a position taken by the federal government – without disclosing the foreign actor’s request to do so.
This example sent shivers down my spine. It suggests Canadians who have interactions with foreign governments are servile dupes who have no capacity for individual judgment and/or agency.
It will be virtually impossible to determine if an opinion piece written by a Canadian academic following an encounter with a foreign official is a case of the official asking the academic to write the piece, or a meeting of minds on a given issue. Even with full disclosure, there is a risk that the opinion piece will be deemed to be “malign” because of the views expressed in the commentary, rather than because of any meaningful evidence of prior arrangements with the foreign actor. The predictable result is that academic interactions with certain foreign officials will become taboo, to the detriment of scholarly engagement.
The consultation paper leaves open the question of whether all countries will be covered by a registry, but it is likely that there will be pressure to follow the American approach, which is selective about which countries produce “malign” foreign influence. A private member’s bill currently in the Senate would do the same and it would include essentially all state and non-state entities in any authoritarian country on the basis that they are potentially subject to the direction and control of that government.
This catch-all approach would affect tens of thousands of Canadians who maintain links with the designated countries. It would force them to either register or cut off their ties with their native countries. This could include, for example, ties with alumni associations, cultural and sporting groups, business clubs, municipalities and kinship bodies on the grounds that all entities from certain designated countries are perceived to be under some form of state control.
It would result in many grey areas where the need to register is subject to the discretion of bureaucrats. In the absence of any evidence of material arrangements with a foreign state, it is likely that the test of registration will default to the views expressed by the Canadian individual or organization. Welcome to the registry of unCanadian activities.
Even if many such individuals and organizations are exempt from registration under one government, there would be no guarantee that they won’t be required to register if a different party is elected in the future. In any case, the fundamental problem with this approach would not be not in the number of entities that end up in the registry; it would be in the stigmatization of those for whom the threat of registration is always hanging over their heads, and the chill in civic discourse and political participation that would descend on whole communities.
It is routine for Canadian parliamentarians, diplomats and other officials to speak to overseas stakeholders here and in their countries about issues that are important for Canada. Indeed, our diplomats actively seek to influence the decision-making of foreign countries – within the laws of the country in which they are operating. We should expect the same of foreign representatives in Canada and there should be penalties for transgressions by foreign agents on Canadian soil.
Proponents of a registry are fond of pointing to similar legislation in the U.S. and Australia, and asking why Canada has not followed suit.
That is the wrong question. We should instead be asking if the American and Australian examples have resulted in less malign foreign influence and/or if any such benefits outweigh the costs of bureaucratic deadweight, social stigma and a toxic political environment.
A recent example points to the dangers of possible overreach. At the urging of one U.S. senator and one congressman, The China Project – an online news portal focusing on contemporary China – was targeted for listing under the American Foreign Agent Registry Act (FARA), although no action has yet been taken. That campaign was not based on any evidence of material links with the Chinese government, but rather on the content of The China Project and the background of its principals. It turns out that this organization is not only unaffiliated with the Chinese government, but its postings and podcasts are banned in the People’s Republic of China, its founder says.
The Australian example is similarly dispiriting. Canberra’s foreign influence transparency scheme (FITS) is widely seen as a “blacklist,” resulting in reputational damage for registrants and a chilling effect on benign foreign interactions in Australia. By some accounts, foreign interference activities in Australia are at an all-time high even though FITS has been in place for more than four years.
But the most important reason why we should not follow the example of the United States and Australia is that we are not the United States or Australia.
Canada is not without its own dark history of racism. Today, however, we celebrate the fact that Canada is a country of immigrants and we embrace the concept of multiculturalism. Our belief in internationalism should mean we do not interpret “foreign” to mean “threatening.” It should also mean a determination on the part of our leaders to foster a political culture that seeks to discriminate between positive and negative influences on our society through openness, education and dialogue, rather than censorship and stigmatization.
If we are to draw a lesson from the Five Eyes, we should look to New Zealand, which is quietly looking at strengthening its laws to deal with harmful foreign interference rather than creating a registry that will do little or nothing to address those problems.
As it is, our better instincts have been compromised by the extreme anti-China sentiment that has spilled over into the toxic stigmatization of Canadians who are associated with the People’s Republic of China because of their ancestry, business ties or professional interests.
The recent media reporting of anonymous and unsubstantiated “intelligence” reports has created a frenzy of innuendo against Chinese Canadian politicians, scholars and community leaders – all in the name of national security. A combination of ignorance, ideological zeal, fear, groupthink and political cowardice has created the very conditions under which a foreign influence registry is most dangerous, and why we need to warn against it.
If, however, a registry is unavoidable, it should apply to all countries equally and be based on specific arrangements such as monetary payment between individuals or organizations and a foreign state, rather than on assumptions.
Registration should be required only for lobbying of government officials and politicians, and not for private activities or general communications. It should not be based on country of origin, ethnicity, business/civil society affiliations or on one’s views. Inasmuch as any registry seeks to make foreign influence activities transparent, it should be accompanied by full government transparency in describing the types of influence activities that are deemed to be malign, and how the registry would reduce such bad acts.
This article is drawn from the author’s submission to the consultation on a foreign influence transparency registry and a House of Commons petition which he supports.
Yuen Pau Woo is an independent senator representing British Columbia.
Published in Policy Options.