An Uncomfortable Balancing Act

By Stefanie Yuen Thio

Online harms are the new frontier of law enforcement. The proposed Foreign Interference (Countermeasures) Act is important for countering threats posed by bad overseas actors, but care should be taken to improve transparency and to protect individual rights.

On 13 September the Foreign Interference (Countermeasures) Bill (FICA) was introduced in Parliament, aiming to strengthen Singapore’s ability to “prevent, detect and disrupt foreign interference” in domestic politics via “hostile information campaigns and local proxies”. FICA, if passed, would give the Ministry of Home Affairs new levers to deal with actual and suspected foreign interference through hostile information campaigns, with broad powers to issue directions to social media platforms, Internet access services and those who own or run websites and blogs.

In addition, a class of persons termed “Politically Significant Persons” (PSPs) will come under increased scrutiny and reporting requirements that target four “vectors of foreign interference”: donations, volunteers, leadership and membership, as well as affiliations. Some – such as Members of Parliament and election candidates – are already known to be involved in politics. However, the authorities will also have the ability to designate other organisations and individuals as PSPs, who would then come under some of the new powers.

Threats posed by the Internet

The Internet has indisputably multiplied and amplified the reach of malignant influences, opening new avenues of harm and deepening societal fissures as a result.

Online harms are the new frontier of law enforcement. A camera built into every smartphone has led to a spike in upskirt videos, posted indelibly onto the World Wide Web when a deviant shares his perversion. Or revenge porn, when a lover is spurned. For some, tis better to have loved and Instagrammed, than never to have loved at all. In certain cases, stalkers superimpose victims’ faces onto suggestive photos taken off the ’net and post these with her contact details. “Dial +65xxx for a good time!” The fastest growing type of online con is the love scam by people pretending to be someone else, preying on the lonely for money. Doxxing happens when individuals’ identities and particulars are revealed online. In some cases, people (sometimes misidentified) have been doxxed over minor public altercations, putting them in fear for the wellbeing of themselves and their family members.

Misinformation is another threat. The conspiracy theories surrounding Covid-19 vaccines have led to people being unwilling to get vaccinated – a clear public health risk to a world still grappling with a pandemic.

The threat is magnified because of the nature of online engagement. Anonymity emboldens bad actors to be more extreme than they would in real life. A viral post’s speed and scale increase the harm it does; its permanence entrenches adverse effects. The Internet also encourages creation of echo chambers, amplified by algorithms of social media platforms, which push out posts similar to what users have been reading or commenting on.

These characteristics make the cyber world rife for foreign interference as it is easier and cheaper for bad actors to mount hostile information campaigns, which could stir up controversy, deepen societal divides and ultimately foment violent protest. The US Capitol riots, after President Biden was declared the winner of the 2020 elections, is one example. In the previous US Presidential election, it is thought that Russian chatbots were mobilised to spread misinformation in order to skew the results. Increased Internet chatter when there are geopolitical squabbles between nations is one area that governments keep a close eye on.

Safeguarding sovereignty

There can be little argument with the principle that a nation has to be able to protect its sovereignty, and that domestic politics must remain the sole preserve of the electorate. A small nation like Singapore, with the world’s most religiously diverse population, would understandably be deeply concerned about possible harm by hostile foreign interference, especially given how digitally connected our people are and the density of our living arrangements. A law that seeks to prevent illegitimate foreign interference clearly cannot be impugned for its intentions. The challenge lies in the extent of its reach.

How far should FICA go?

Any good law must have three qualities: transparency of application, accountability in enforcement, and access to review on appeal. In this light, some proposed features of the Bill stand out.

PSPs, once designated under FICA, would come under greater restrictions. These mandate reporting of donations and disclosure of foreign affiliations. If the authorities deem that the risk of foreign interference is high, they may issue directions to the PSP to end associations with foreign principals.

So far, so reasonable. But as with all such laws, FICA is widely drafted. A PSP must declare any arrangement with a “foreign principal” (which is so broadly defined that it includes any foreign business or non-Singapore citizen) he has an association or affiliation with, even if this “is not directed towards a political end in Singapore”. It should be highlighted that this designation could be made when the individual in question has broken no laws, based on the authorities considering that it is “in the public interest” to do so, giving weight “as the competent authority considers appropriate” to “such matters and evidence as may be relevant”. Being an employee of a foreign principal would, in and of itself, be a reportable arrangement for a designated PSP.

A potential PSP has the right to be heard prior to being designated, and once designated, his only recourse is to appeal to the Minister of Home Affairs. There is no obligation on the government to inform him of the full basis for its decision to make the designation. This secrecy is because the information may be politically sensitive and disclosure may prejudice Singapore’s national security and foreign relations. But how is an affected person supposed to defend his position if he does not know the basis of a determination against him? And while FICA seeks to place restrictions only on activities that are linked to foreign interference, it is not known what the indirect consequences of being designated a PSP are. Would society feel that he is “black marked” for instance, and how would this affect him in, say, his employment prospects?

A more troubling point is the appeal process. Under the Bill, certain decisions may be appealed to a three-person Reviewing Tribunal appointed by the President on the advice of Cabinet, and chaired by a High Court judge. There is no right of appeal to the courts and very limited recourse to judicial review, the usual legal means to challenge a government decision. This is an important departure from the usual rights of judicial oversight, the bulwark against unfair government action. In addition, the Bill enables the Reviewing Tribunal to consider the appeal “without the person who brought the appeal having been given full particulars” of the reason for the authorities’ decision.

FICA thus reposes a lot of power in the office of the Minister of Home Affairs. And because the issues that come under FICA are so broad, encompassing even those “seeking to influence public opinion” on a matter of “public controversy” in Singapore, its reach extends beyond what one typically thinks of as political activities. LGBTQ rights, gender equality, climate change issues and employment rights would come within its ambit, and those who advocate on such issues with support or collaboration from similar-minded groups from abroad, could be designated PSPs.

To ensure that there is transparency and thus accountability and, more importantly, perceived transparency and accountability, under FICA, I would suggest that any party against whom an order or designation is made be allowed appeal to the Singapore courts, with the judge(s) sitting in camera (i.e. without allowing access to the public). The authorities should be required to provide all supporting evidence they are relying on. If the government is of the view that, in the case of specific data, secrecy is necessary for national security, such excluded information should be provided to the presiding judge(s) in a separate and confidential hearing to determine if national security is indeed jeopardised.

Because the designation of a PSP may not be appealed against before the Reviewing Tribunal, this tribunal or other appropriate body should conduct a periodic confidential review of the factors and thresholds applied when designating PSPs, to ensure that only organisations and individuals who pose significant risk of being a vector of foreign interference are subject to designation as a PSP.

The current broad construct of the Bill would potentially open it to arguments that it could be used for political or other unintended purposes. More importantly, there is a risk that those unhappy with the government would allege that FICA could be used to go after political opponents. I have no doubt that our present Cabinet would use the Act for proper purposes, but a law is only a good law if it results in fair outcomes, irrespective of the intentions of the officials applying it.

A FICA for a global city

The provisions of FICA strike at the heart of public law. It must walk the uncomfortable tightrope between national interest and individual rights. While the national security argument can certainly be understood, such issues are necessarily shrouded in secrecy and must be weighed against principles of natural justice.

Singapore positions itself as a global financial and services hub. Sitting at the intersection of the world, we are bombarded by a multitude of influences, and while we should not let foreigners dictate our views, our attitudes are informed and honed by the cross-fertilisation of ideas from all corners of the world. We must find a way to be open to diverse voices while protecting our sovereignty. And the laws we pass to safeguard our interests must contain guarantees of transparency and mutual accountability. To do otherwise would build distrust. It would be ironic if a new law, intended to reinforce trust in public institutions, has the unintended consequence of eroding them instead. Ultimately, a society is only as strong as the trust we have in one another.


TSMP law corporation