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February 25, 2020
Foreign Agents Registration Act (FARA): A Legal Overview
In 1938, Congress enacted the Foreign Agents Registration
Act (FARA) to reduce the influence of foreign propaganda
circulating in the United States. Anticipating that greater
transparency could help achieve these ends, Congress
imposed new registration, reporting, and record-keeping
requirements on entities acting within the United States on
behalf of foreign interests.
While the act has been amended many times, the early
framework endures: persons defined as agents of a
foreign principal must register with the U.S. government,
make a public record of the nature of their employment, and
maintain all private records for official inspection. FARA
contains broad exemptions, however, and, because there
have been few administrative or judicial enforcement
actions, a number of ambiguities about the scope of the
act's requirements and exemptions persist.
FARA defines foreign principal to include
* governments of foreign countries;
* foreign political parties;
* entities organized under the laws of a foreign country or
having their principal place of business in a foreign
country; and
* individuals outside the United States who are not U.S.
citizens domiciled in the United States.
FARA's definition of an agent of a foreign principal has
three components that focus on the type of influence being
used on the agent, who is wielding influence over the agent,
and the activities the agent is performing as part of this
relationship.
First, an agent is someone who acts at the order, request,
or under the direction or control of another. The Second
Circuit has recognized that the exact parameters of a
'request' under the act are difficult to locate, falling
somewhere between a command and a plea. Holding that
no single factor is determinative, the court determined that
[o]nce a foreign principal establishes a particular course of
conduct to be followed, those who respond to its 'request'
for complying action may properly be found to be agents
under the Act. This is a significantly broader conception of
agency than courts generally apply in other areas of law;
traditionally, agency is found only where the relationship
between agent and principal is close enough that the agent's
actions may subject the principal to legal liability.
Second, an agent is someone who acts at the behest of
either (1) a foreign principal or (2) a person whose activities
are directly or indirectly supervised, directed, controlled,
financed, or subsidized in whole or in major part by a
foreign principal. Some lower courts have held that an
entity that receives foreign funding and acts to the benefit
of foreign interests is not required to register under FARA
unless the foreign funder subjects the recipient to its
direction or control.
Third, an agent is someone who acts within the United
States in one of the following ways:
* engaging in political activities in the interests of a
foreign principal, which the act defines to include any
activities believed or intended to influence the U.S.
government or public about U.S. policy or other foreign
interests;
* acting as a publicity agent or political consultant in the
interests of the foreign principal;
* soliciting, collecting, or disbursing money or other
things of value in the interests of a foreign principal; or
* representing the interests of a foreign principal before
any agency or official of the U.S. government.
FARA provides that the following entities are not required
to register under the act:
* News or press services engaged in bona fide news or
journalistic activities that are
* organized under the laws of any U.S. jurisdiction;
* at least 80% beneficially owned by U.S. citizens;
* run by officers and directors who are U.S. citizens;
and
* not owned, directed, supervised, controlled,
subsidized, or financed by any foreign principal or
agent.
* Foreign diplomats, consular officers, or other
recognized officials and staff.
* Persons engaging in private and nonpolitical activities in
furtherance of a foreign principal's bone fide trade or
commerce. By regulation, commercial activities of state-
owned companies are considered private so long as
the activities do not directly promote the public or
political interest of the foreign government. However,
the Department of Justice has concluded that tourism
promotion is not private or nonpolitical activity because
tourism fosters economic development, which is in
every foreign government's public and political
interests.
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