MALIGN FOREIGN INFLUENCE (CANADA)

Malign foreign influence is a subset of foreign interference, wherein an individual or entity exerts influence, through covert or non-transparent means, at the direction of, or on behalf of, or with the substantial support of, a foreign principal.

Foreign governments regularly seek to influence the Government of Canada and public opinion in Canada, and often do so through established legitimate and transparent channels. This is regular influence undertaken by a foreign principal and, when sufficiently transparent, may not pose a significant harm to Canada or Canadians. However, when individuals or entities seek to exert influence on behalf of foreign principals in non-transparent ways, this can have serious consequences.

Some foreign governments, or their proxies, may leverage individuals or entities to undertake non-transparent, malign foreign influence activities intended to shape Canadian government policy, outcomes, or public opinion, without disclosing their foreign government ties. Such activity may include:

• seeking to influence Members of Parliament, Senators or their staff;
• seeking to influence public servants at all levels of government;
• seeking to influence political parties and election candidates;
• making verbal or written statements in public or through media favorable to a foreign government, while deceptively obfuscating their origins or motivations;
• producing communications materials for societal, political and government influence; and,
• disbursing money and things of value on behalf of a foreign government for influence purposes.

These activities could result in policy and legislation favorable to foreign interests over Canadian ones. They could also impact the content of available material that informs public opinions and the exercise of democratic rights. In some instances, this information could be disseminated by Canadians who may not be fully aware it originates from a foreign principal or entity. Unclear labelling of state-backed communications can produce public or media messaging that reinforces interests of adversarial states and circulates propaganda/disinformation that could either misdirect citizens or pollute the general media/information environment.

Malign foreign influence is a particularly complex challenge to address, in part because detection can be difficult and attribution can be made only after influence has been exerted. Canada, and many of its allies and like-minded partners, have mechanisms in place to establish appropriate parameters for general political lobbying through traditional, legitimate means. However, these regimes are difficult to apply to malign foreign influence campaigns that are designed in a manner that tries to circumvent registration requirements set out in legislation. For this reason, some of Canada’s closest allies and like-minded partners have brought forward additional measures, including legislative regimes, to specifically enhance foreign influence transparency in their respective countries. Any new measures brought forward to bolster Canada’s approach should be in alignment, to the extent possible, in order to bolster overall collective resilience.

Benchmarking

Canada

To enhance foreign influence transparency and address malign foreign influence, the Government of Canada will introduce a registry to complement existing legislative tools and authorities. A foreign influence transparency registry could impose strict disclosure requirements for individuals and entities acting on behalf of foreign principals for influence purposes. If individuals or entities acting on behalf of foreign principals fail to register, they could face significant administrative and/or criminal penalties. The rules may not only apply to Canadian citizens, but could capture any individual or entity undertaking registrable activities in Canada or towards Canadians, at the direction of a foreign principal. This could include, for example, permanent residents, or foreign residents residing in Canada. To ensure there is compliance with such measures, as well as to enhance transparency and awareness of malign foreign influence in Canada, the government could require individuals or entities to publicly register. To implement a register and oversee the overall administration of the law, an approach to governance will need to be designed.

United States

The Federal Bureau of Investigation (FBI) is the lead federal agency responsible for investigating foreign influence operations. However the U.S. has recently established the Foreign Malign Influence Response Center (FMIC) within the Office of the Director of National Intelligence. (ODNI) to serve as the primary government organization for analyzing intelligence relating to malign foreign influence operations, coordinate governments efforts related to detecting and responding to such operations, and assess the expertise and readiness of government departments to respond to such operations. The Center intends, at this time, to focus efforts on “covered foreign countries”, which includes the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the People’s Republic of China. In addition, new legislation has been recently introduced to congress to strengthen defenses to foreign influence, such as the Fighting Foreign Influence Act, and the Foreign Influence Transparency Act recently introduced in the Senate. The U.S. also uses the Foreign Agents Registration Act (FARA) to address malign foreign influence. In 1938, FARA was enacted to require individuals doing political or advocacy work on behalf of foreign entities in the United States to register with the Department of Justice (U.S. DOJ) and to disclose their relationship, activities, receipts, and disbursements in support of their activities. FARA does not prohibit any specific activities, but rather it seeks to require registration and disclosure as a measure of transparency. FARA does not have any specific provisions targeted at former public office holders. A publicly accessible database of registered foreign agents is maintained on U.S. DOJ’s website, and the FARA Unit of the Counterintelligence and Export Control Section in the National Security Division is responsible for the administration and enforcement of FARA. FARA has been in place for over 80 years, but recently, detected violations have provided leads for the FBI to initiate counter-intelligence investigations, some of which have led to criminal charges and/or immigration proceedings.

Australia

In 2018, Australia introduced the Foreign Influence Transparency Scheme (FITS) into law. Generally speaking, any person is required to register under the FITS if they engage in, or plan to engage in, activity that is undertaken for the purpose of political or governmental influence and on behalf of a foreign government, foreign political organization, or foreign company, where total or substantial control can be exercised by a foreign government, or foreign government-related individual. Crucially, registrable activities include not only traditional lobbying but also communications and spending undertaken for political or governmental influence and on behalf of a foreign principal. Additionally, whether a particular activity is registrable or not depends on who the foreign principal is and the purpose of the activity, and in some cases on the person’s former status. A former Cabinet Minister must register any such activities for life, while a former designated position holder (senior government or Parliament official) must do so for 15 years following their having left the position. The registry is maintained by the Attorney General’s Department (AGD) Foreign Influence Transparency Scheme Section, and is publicly accessible on the AGD website. The registry displays the registrant, a brief description of their reported activity, the foreign principal, and the dates when the activity began and ceased (if applicable). Registrants must update their submission to the registry every six months in order to provide authorities with updated information. Offences exist for failing to register or update your information when required to do so, misleading or lying to authorities, or destroying relevant records. Penalties for violations under the FITS range from fines to prison terms of six months to five years.

United Kingdom

The United Kingdom relies on a variety of authorities for security and intelligence departments and agencies to counter foreign interference. The Official Secrets Act (1911, 1920, and 1939) are the core pieces of legislation providing criminal offences to protect the UK from espionage and hostile activity by states. The 1911 Act created criminal offences for two different types of espionage: espionage by trespass/proximity, and espionage by information gathering and communication. Subsequent amendments continued to modernize the legislation, including a suite of changes in 1989 when criminal offences for unauthorised public disclosure of sensitive official information were created.

In 2022, the United Kingdom tabled a Bill to again update and reform the Official Secrets Act, as well as bring forward a new foreign influence registration scheme (FIRS) that would require individuals in scope of certain requirements to register activity being undertaken for, or on behalf of, a foreign state.