Second Reading of Foreign Interference (Countermeasures) Bill – Speech by Assoc Prof Muhammad Faishal Ibrahim, Minister of State, Ministry of Home Affairs and Ministry of National Development
1. Mr Speaker, the Minister for Home Affairs has explained the outline and reasons for the Bill. I support the principles of the Bill as outlined by the Minister and would like to advocate the importance of having such a law to deal with Hostile Information Campaigns or HICs.
2. I will discuss Parts 2 and 3 provisions pertaining to HICs.
Purpose of Bill
3. Foreign actors have leveraged digital technologies to carry out HICs. We have observed that these tend to be deliberate and coordinated attempts to use information to manipulate public opinion and harm a country’s interest. In addition, they are often clandestine and seek to mislead the public under false pretenses.
4. This Bill does so by providing a set of offences, and empowering the Government to issue directions to counter HICs.
5. The new offences in Part 2 of the Bill are aimed at acts of foreign interference by covert means using electronic communications. Clause 10 defines electronic communications activity as the communication or distribution of any information or material through means of SMS, MMS, a social media service, a relevant electronic service or an internet access service.
6. Clause 17 introduces the offence of clandestine foreign interference by electronic communications activity. There are three elements:
7. The offence clearly deals with persons covertly and knowingly acting against the public interest on behalf of a foreigner. The mere fact that communications were private – e.g. an online video call between two people – would not make them covert.
8. For an offence to be made out, there must be an element of secrecy or a lack of transparency surrounding the person’s conduct. For example, a Singaporean is paid by a foreign intelligence agency to publish a number of articles criticising Singapore’s foreign policy toward that country. He does so but presents it in his personal capacity as a citizen, without disclosing his links to the foreign agency. This would be considered covert.
9. Clause 17 does not cover Singaporeans acting on their own accord, or foreigners making open and attributable comments. Nor does it cover unintentional acts. For example:
10. Clause 18 introduces a separate aggravated offence of clandestine foreign interference of a target using electronic communications activity. This offence would apply if a few conditions are fulfilled.
11. This is an aggravated offence because it involves a greater degree of duplicity, in targeting another person to act against Singapore’s public interest. Such acts are calculated and more likely even harder to detect, and consequently have the potential to cause greater harm. The offence thus carries higher penalties commensurate with the greater harm.
12. Clause 19 introduces an offence of preparing or planning for the above offences, and Clause 115 clarifies that these offences will have extra-territorial application.
13. These offences will be investigated by the Police. For offences involving SAF installations, assets and personnel, Police will work with the SAF.
14. The Bill contains customised powers for the Government to act against HIC content online. Part 3 of the Bill empowers different directions
15. As Minister has stressed, the basic architecture of our counter-HIC measures is that directions can be issued only when the Minister assesses that all of the following three conditions in Clause 20 are met:
16. Clause 7 sets out non-exhaustive illustrations of what would cross the public interest threshold. For example, in the interest of the security of Singapore, to protect public health or public finances, to prevent incitement of feelings of enmity between different groups in Singapore, or to prevent foreign interference directed towards a political end – which would include interfering in our domestic politics. These illustrations reflect the context of HICs. They are not meant to constrain the interpretation of public interest found in other laws, which should be read in their respective contexts.
Details of Directions
17. To improve the Government’s ability to investigate potential HICs, Clause 36 introduces the Technical Assistance Direction to request various forms of assistance from social media services, relevant electronic services, hosting services, internet access service providers and proprietors of online locations. The intent is for these parties to provide information or data that is useful in investigating if there is an ongoing HIC and the source of the HIC content, in particular whether it originates from a foreign source.
18. This information includes basic subscriber information that is provided when accounts are set up such as IP addresses, or aggregated geolocation data. It is not MHA’s intent to demand assistance that is not reasonably practicable, or information beyond what is necessary. Nor will we demand information for purposes beyond investigating a suspected HIC.
19. Technical Assistance Directions are subject to a non-disclosure requirement to prevent tipping off a suspect of an ongoing investigation and prevent any unauthorised external party from undermining investigations. Recipients can specify that they received the direction but cannot disclose the substance of the direction. Breaches of any non-disclosure requirement constitutes an offence under Clause 46.
20. Other Part 3 directions are designed to provide targeted powers for the Government to contain the propagation of HICs, and mitigate the harms caused.
21. Clause 32 introduces the Must Carry Direction that will require the recipient to publish, post, display or include a message about the HIC content in a manner prescribed by Regulations. The intent of such directions is to warn the public that the content is part of a HIC. There are four classes of directions for different recipients:
22. There are two directions to remove specific HIC content from being accessible by end users in Singapore:
23. Clause 34 introduces the Account Restriction Direction, which can be issued to relevant electronic services and social media services, and is intended to prevent specific accounts from communicating with Singapore end-users.
24. Clause 35 introduces the Service Restriction Direction, which can be issued to relevant electronic services, social media services and internet access service providers to stem the virality of HICs and restrict internet service functionality respectively. Each Service Restriction Direction will specify the actions required of the recipient. For example, restricting a certain function of their service, preventing harmful content from being actively recommended to end-users in Singapore, or slowing down or stopping Internet access. MHA will work with the industry on how such directions are to be operationalised, and identify reasonable and practicable interventions, given the potential significant impact on the services.
25. Clause 37 introduces the App Removal Direction to stop the further distribution of an app to Singapore end-users, if the app is being used to spread HIC content. This can be issued only if at least one direction that is not a Technical Assistance Direction or another App Removal Direction, had been issued with respect to that app.
26. Clause 24 provides for the Minister to declare an online location as a Proscribed Online Location (or POL) if one Part 3 direction, other than the Technical Assistance Direction, has been issued. Once proscribed, it is an offence to operate this POL, provide support to it or have advertising dealings with it – Clauses 39 to 41 give effect to these restrictions. To ensure that the public is aware of its POL status, a Class 4 Must Carry Direction can be issued to require the owner to put up a notice about its proscribed status. The intent of this POL regime is hence to reduce the impact of the POL, by:
27. We also need to be able to take action against non-compliance of directions.
28. Non-compliance with these directions will be an offence under Clause 45. If charged, parties may raise the defence that it was not reasonably practicable to do more than what was done, or that there were no better practicable means of complying, for example, due to technical impossibility.
29. Mr Speaker, HICs can cause devastating harm, including erosion of the country’s sovereignty, undermining of social cohesion and loss of public trust. Minister has provided a detailed account, and these cases are well-publicised. In addition, threat actors are improving their tactics all the time.
30. Therefore, we cannot wait for harms to occur before taking action, because severe damage may already be done. Should there be credible information about a potential HIC threat, the Government must be able to act to prevent it. Our authorisation thresholds must therefore be calibrated to allow certain directions to be issued even before any harmful communications have commenced. Clause 21 therefore provides for two specific directions – Technical Assistance Direction and Account Restriction Direction – to be authorised before harmful communications activity has taken place.
31. Let me illustrate how we intend to use these levers. Take the following scenario, which is illustrative but not exhaustive. It is not hypothetical, because we have seen this modus operandi in HICs conducted against other countries:
32. Mr Speaker, MHA has studied international cases and reviewed testimony from the Select Committee on Deliberate Online Falsehoods to come up with these directions. Let me reiterate that MHA will use these powers judiciously and will calibrate our actions based on the specifics of each case. In assessing whether a HIC is afoot, the primary determinant is the behaviour of the actor involved, and the entities behind the content. It is clear therefore that Singaporeans who are simply expressing their own views or engaging in the political process on their own accord are not covered. And neither will the vast majority of communications involving foreigners, be it journalism or academia, or online advocacy.
33. MHA has also consulted the major stakeholders on the operationalisation of these directions and will continue doing so, to take into account the industry’s constraints, from the technical to the legal, as we work together to counter HIC threats on their platforms.
34. I have set out the clear conditions that must be met before directions can be issued, and the defences inscribed in the Bill. I will now set out the avenues for appeal.
35. This Bill will provide the right of appeal to recipients of counter-HIC directions and proprietors of Proscribed Online Locations (POL). Appeals will be heard by a Reviewing Tribunal.
36. Clause 23 clarifies that recipients of counter-HIC directions and proprietors of POLs must first apply to the Minister to reconsider the Part 3 direction.
37. Should the Minister reject the application, the appealing party may then appeal to a Reviewing Tribunal, which is constituted under Part 8 of the Bill. The appeal to the Tribunal must be submitted within 30 days from the outcome of the Minister’s reconsideration.
38. This Tribunal can then dismiss the appeal, confirm the direction appealed against, or revoke the direction. Decisions would be determined by the Tribunal and are final. These are set out in Clause 97.
39. Minister has explained the reasoning behind the Reviewing Tribunal. The difficulty that confronts us is the suitability of making the courts serve as an oversight body for decisions taken under the Bill, which involve issues of national security, defence and foreign policy and information from intelligence sources, not necessarily only of our own agencies. Our own Courts have said that they have limits in these areas.
40. The Reviewing Tribunal structure thus recognises the need for checks and balances, while protecting sensitive intelligence that is relied upon to counter a HIC. The Tribunal in fact goes further than judicial review in some ways, in that it is able to assess the initial decision on its merits, whereas the court in judicial review proceedings focus only upon the legality of the administrative decision.
41. Mr Speaker, allow me to continue my speech in Malay.
42. Tuan Speaker, kami sedang berdepan dengan ancaman campur tangan asing yang dahsyat dan berubah-ubah, yang boleh dilakukan di dalam talian menerusi Kempen Maklumat Berniat Jahat atau HIC, atau menerusi proksi-proksi tempatan yang terlibat sama dalam proses politik kita yang dikenali sebagai Individu Penting Dari Segi Politik atau PSP. Menteri, saya sendiri dan seterusnya Menteri Negara Desmond, telah menggariskan ancaman-ancaman tersebut, dan ianya jelas bahawa kita perlu mengambil langkah-langkah tindak balas.
[Translation: Mr Speaker, we are facing a severe and evolving threat of foreign interference, which can be carried out online through HICs or through local proxies involved in our political processes also known as Politically Significant Persons or PSPs. Minister and I have outlined the threat of HICs, and MOS Desmond will speak on the threat of PSPs. It is clear that we need to counter it.]
43. Kita telah membincangkan isu-isu ini di Singapura sepanjang tiga tahun lalu. Sekurang-kurangnya, 18 orang wakil telah berucap mengenai ancaman campur tangan asing di Jawantankuasa Pilihan Mengenai Kepalsuan Dalam Talian yang Disengajakan pada tahun 2018. Terdapat satu persidangan besar pada tahun 2019 dan perbincangan di perbahasan Belanjawan MHA. Jadi, rang undang-undang ini bukanlah sesuatu yang dilakukan secara tergopoh-rapah.
[Translation: We have been discussing these issues in Singapore over the last three years. At least 18 representors spoke on the threat of foreign interference at the Select Committee on Deliberate Online Falsehoods in 2018. There was a major conference in 2019, and discussions at our Committee of Supply Debates. So this is not a Bill that has come in haste.]
44. Rang undang-undang ini tidak menambah kuasa hakiki undang-undang sedia ada seperti Akta Keselamatan Dalam Negeri, Kod Prosedur Jenayah, Akta Penyiaran dan Akta Telekomunikasi secara signifikan. Bahkan, sebahagian besar rang undang-undang ini merupakan Akta Sumbangan Politik yang dipindahkan.
[Translation: This Bill does not significantly increase the substantive powers from existing laws such as the Internal Security Act, Criminal Procedure Code, Broadcasting Act and Telecommunications Act. In fact, a significant portion of the Bill, is simply the Political Donations Act ported over.]
45. Justeru apa rang undang-undang ini lakukan ialah untuk menyediakan lebih banyak kawalan-kawalan yang lebih tertumpu yang disesuaikan terhadap HIC, yang lebih ketat daripada kuasa sedia ada, seperti yang terkandung dalam Akta Penyiaran dan Telekomunikasi. Saya telah menjelaskan kepada Dewan ini mengenai kawalan-kawalan tersebut, dan menyediakan beberapa ilustrasi tentang bagaimana kita berhasrat untuk menggunakannya dengan cara yang bijak dan bersekadar.
[Translation: So what the Bill does is to provide more targeted and calibrated levers against HICs, which are narrower than existing powers such as in the Broadcasting and Telecommunications Act. I have brought the House through these levers, and provided some illustrations of how we intend to use them in a judicious and proportionate manner.]
46. Tambahan lagi, rang undang-undang ini mengambil alih keperluan bagi PSP yang terdapat dalam Akta Sumbangan Politik, dan memperkenalkan rangka kerja jawatan dan kuasa eksekutori yang lebih kukuh, untuk menangani campur tangan menerusi PSP, yang mana Menteri Negara Desmond bakal menjelaskan.
[Translation: In addition, this Bill ports over the requirements for PSPs from the Political Donations Act and introduces a more robust framework of designations and executory powers to deal with interference through PSPs, which MOS Desmond will elaborate on.]
47. Terdapat kawalan serta keperluan yang sama di negara-negara lain.
[Translation: There are comparable levers and requirements in other foreign jurisdictions.]
48. Izinkan saya untuk menekankan bahawa rang undang-undang ini tidak meliputi warga Singapura yang melibatkan diri secara bebas dalam wacana politik tempatan, mahupun pelbagai interaksi yang amat meluas dengan warga asing. Ia secara khususnya amat prihatin tentang kegiatan yang terselindung dan secara sulit yang bertujuan memanipulasikan politik tempatan kita, dan meremehkan kedaulatan politik kita, dan bukan kegiatan, transaksi, hubungan mahupun kritikan yang terbuka, telus dan bertanggungjawab. Terdapat juga beberapa langkah perlindungan seperti kriteria jelas bagi sebarang kesalahan, had pemberikuasaan jelas bagi sebarang niat, dan wadah-wadah untuk membuat rayuan.
[Translation: Let me also reiterate that this Bill does not target Singaporeans participating independently in our domestic political discourse nor the very vast majority of interactions with foreigners. It is primarily concerned about covert and clandestine activities to manipulate our domestic politics and undermine our political sovereignty, and not open, transparent and attributable activities, transactions, relationships, or even criticisms. There are also various safeguards such as clear criteria for offences, clear authorisation thresholds for directions, and avenues for appeal.]
49. Tuan Speaker, Pemerintah ini selalu mengambil pendirian yang tegas bahawa politik tempatan adalah bagi warga Singapura untuk memutuskan, dan kita tidak harus membenarkan individu asing melakukan campur tangan di dalamnya. Rang undang-undang ini memastikan kita dapat terus mengambil pendirian ini, dan warga Singapura dapat terus membuat pilihan mereka sendiri tentang bagaimana kita harus memerintah negara kita dan menjalani kehidupan kita.
[Translation: Mr Speaker, this Government has always taken the firm stance that our domestic politics are for Singaporeans to decide, and that we should not allow foreign actors from interfering in them. This Bill ensures that we can continue to take this stance, and that Singaporeans can continue to make our own choices on how we should govern our country and live our lives.]
50. Thank you, Mr Speaker.
Watch the speech here.