Countering Foreign Interference Means Criminalizing the Role of Social Media Platforms

Riding on public interest in the public inquiry into foreign interference, Canada is taking much needed steps to modernize its toolkit for countering foreign interference. However, notably missing are any measures to criminalize the role of social media platforms, the entities actually facilitating the spread of disinformation aimed at harming Canadian national interests.

Recently, Public Safety Canada (“PSC”) and Canada’s national spy agency, the Canadian Security Intelligence Service (“CSIS”), have been consulting Canadians on their proposal to update various acts, including the Criminal Code and Canadian Security Intelligence Services Act.

The amendments will grant the government more tools to effectively respond to and prosecute foreign interference. New offences will be added, penalties increased, and barriers to investigation and prosecution removed. The statutory amendments are much needed, as some of the statutes have not been comprehensively updated since 1984, a time when foreign entities’ methodologies were constrained to those from the Cold War era.

However, the updates do not go far enough to bring Canada within the digital age, which has progressed exponentially in recent years. The amendments focus predominantly on cases of what is better categorized as treason, such as sharing national secrets, bribery, and intimidation. It fails to meaningfully address one of the most harmful and effective acts of foreign interference: disinformation.

The scale and impact of disinformation can easily outweigh individual acts of treason. For example, the Australian Strategic Policy Institute reported that since last year, AI-generated political disinformation from 30 YouTube channels was viewed 120 million times. Meta further announced that it had recently shut down thousands of fake Facebook accounts that were posing as real Americans and attempting to influence public opinion on political issues.

While social media companies have made some attempts to tackle foreign interference, as it stands, the government relies on the discretion of the platforms to act in a manner that serves Canadian interests.

This reliance is dangerous, as the platforms may “deprioritize” tackling disinformation on a whim, and are prepared to resort to threatening the government if Canadian interests do not align with their business interests.

Social media platforms generate significant revenue from disinformation, and some platforms have adopted algorithms that increase the visibility of such content. It only seems appropriate then, that if social media platforms are facilitating malign acts of foreign interference, then they should face the potential for criminal liability. In turn, the threat of criminal sanctions will spur social media platforms to address disinformation in ways that government actors cannot hope to achieve.

PSC’s proposed statutory amendments already include offences that could be tailored to criminalize social media’s role in disseminating disinformation linked to foreign interference. These include offences relating to knowing or reckless acts or omissions for the benefit of a foreign entity, possessing a tool that facilitates sabotage and including “communication” as critical infrastructure that could be subject to sabotage.

The social media platforms will predictably raise the ever-catchy “free speech” argument. This can be addressed relatively easily and (hopefully) uncontroversially. While the doctrine of free speech is important to protecting dissenting views, it does not include the right to drown out majority views by overwhelming mainstream communication channels with AI-generated disinformation. Nor does it contain a right to profit off undermining Canadian democracy.

A comprehensive approach to protecting Canadians from foreign interference requires countering threats from all foreign entities. This includes protecting Canadians from disinformation disseminated by American corporations. We must apply these policies in a consistent and transparent manner that enhances public confidence in our democracy.

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