February 25, 2020
Foreign Agents Registration Act: A Legal Overview
In 1938, Congress enacted the Foreign Agents Registration
are “directly or indirectly supervised, directed, controlled,
Act (FARA) to reduce the influence of foreign propaganda
financed, or subsidized in whole or in major part by a
circulating in the United States. Anticipating that greater
foreign principal.” Some lower courts have held that an
transparency could help achieve these ends, Congress
entity that receives foreign funding and acts to the benefit
imposed new registration, reporting, and record-keeping
of foreign interests is not required to register under FARA
requirements on entities acting within the United States on
unless the foreign funder subjects the recipient to its
behalf of foreign interests.
direction or control.
While the act has been amended many times, the early
Third, an agent is someone who acts within the United
framework endures: persons defined as “agents” of a
States in one of the following ways:
“foreign principal” must register with the U.S. government,
engaging in “political activities” in the interests of a
make a public record of the nature of their employment, and
foreign principal, which the act defines to include any
maintain all private records for official inspection. FARA
activities believed or intended to influence the U.S.
contains broad exemptions, however, and, because there
government or public about U.S. policy or other foreign
have been few administrative or judicial enforcement
interests;
actions, a number of ambiguities about the scope of the
act’s requirements and exemptions persist.
acting as a publicity agent or political consultant in the
interests of the foreign principal;
Who Is a Foreign Principal?
FARA defines “foreign principal” to
include
soliciting, collecting, or disbursing money or other
things of value in the interests of a foreign principal; or
governments of foreign countries;
representing the interests of a foreign principal before
foreign political parties;
any agency or official of the U.S. government.
entities organized under the laws of a foreign country or
Who Is Exempt?
having their principal place of business in a foreign
FARA provides that the following entities are not required
country; and
to register under the act:
individuals outside the United States who are not U.S.
News or press services engaged in bona fide news or
citizens domiciled in the United States.
journalistic activities that are
Who Is a Foreign Agent?
organized under the laws of any U.S. jurisdiction;
FARA’s definition of an “agent of a foreign principal” has
three components that focus on the type of influence being
at least 80% beneficially owned by U.S. citizens;
used on the agent, who is wielding influence over the agent,
run by officers and directors who are U.S. citizens;
and the activities the agent is performing as part of this
and
relationship.
not owned, directed, supervised, controlled,
First, an agent is someone who acts at “the order, request,
subsidized, or financed by any foreign principal or
or under the direction or control” of another. The Second
agent.
Circuit has recognized that the “exact parameters of a
Foreign diplomats, consular officers, or other
‘request’ under the act are difficult to locate, falling
recognized officials and staff.
somewhere between a command and a plea.” Holding that
no single factor is determinative, the court determined that
Persons engaging in private and nonpolitical activities in
“[o]nce a foreign principal establishes a particular course of
furtherance of a foreign principal’s bone fide trade or
conduct to be followed, those who respond to its ‘request’
commerce. By regulation, commercial activities of state-
for complying action may properly be found to be agents
owned companies are considered “private” “so long as
under the Act.” This is a significantly broader conception of
the activities do not directly promote the public or
agency than courts generally apply in other areas of law;
political interest of the foreign government.” However,
traditionally, agency is found only where the relationship
the Department of Justice has concluded that tourism
between agent and principal is close enough that the agent’s
promotion is not private or nonpolitical activity because
actions may subject the principal to legal liability.
tourism fosters economic development, which is in
every foreign government’s public and political
Second, an agent is someone who acts at the behest of
interests.
either (1) a foreign principal or (2) a person whose activities
https://crsreports.congress.gov
Foreign Agents Registration Act: A Legal Overview
Persons engaged in the solicitation or collection of
as an administrative obligation . . . to one that is
humanitarian funds to be used only for medical
increasingly an enforcement priority.” Special Counsel
assistance, food, and clothing.
Robert Mueller’s investigation into Russian influence
during the 2016 elections resulted in several high-profile
Persons engaging only in activities in furtherance of
FARA convictions, and, in a rare use of its civil
bona fide religious, scholastic, academic, or scientific
enforcement power, in 2019 the Department of Justice
pursuits, or of the fine arts. By regulation, this
required a Florida broadcast company involved in the
exemption is not available to any person engaged in
distribution of a Russian radio channel to register as a
political activities in the interests of a foreign principal.
foreign agent.
Attorneys engaged in the legal representation of a
foreign principal before a U.S. court or agency as part of
Proposals for Reform
an official proceeding or inquiry.
The 2016 Inspector General report suggested several
legislative changes that could help the Department of
Agents engaged as lobbyists for a foreign
Justice administer and enforce FARA, including the
nongovernmental person, corporation, or organization if
following:
the agent has registered under the Lobbying Disclosure
Act of 1995.
Refining the act’s broadly worded exemptions, which
sometimes make it difficult to determine whether think
Persons engaging in other activities not serving
tanks, nongovernmental organizations, university and
predominantly a foreign interest.
college campus groups, foreign media entities, and
Reporting and Record-Keeping
grassroots organizations that receive funding and
Requirements
direction from foreign governments qualify as foreign
agents.
Agents of foreign principals that are not otherwise exempt
must comply with FARA’s registration requirements,
Providing the Department of Justice’s FARA Unit with
disclosure requirements, and record-keeping requirements.
civil investigative demand authority to allow law
enforcement to compel the production of records and
Covered entities must file a registration statement with the
testimony from suspected foreign agents.
Department of Justice within 10 days of becoming an agent
Updating the disclosure and labeling requirements to
of a foreign principal. The registration statement must
reflect the practical effects of internet and social media
include, among other information, the name and address of
communications. For example, Twitter’s character limits
every foreign principal for whom the agent is acting, a
preclude agents from appending a full disclosure to each
comprehensive statement of the activities to be performed
tweet.
by the agent on behalf of the foreign principal, and the
nature and amount of compensation the agent is to receive
In the 116th Congress, a variety of bills have been
for these efforts. Agents must update these filings every six
introduced to amend FARA:
months.
H.R. 1522 would prohibit certain U.S. officials from
An agent of a foreign principal also must file public copies
serving as an agent of a foreign principal.
of any “informational materials” that the agent disseminates
H.R. 1566 would ensure online access to FARA
among two or more persons in the interests of a foreign
registration statements.
principal. These materials must include a conspicuous
statement that they are distributed by an agent on behalf of
H.R. 3698 would impose additional disclosure
a foreign principal.
requirements on registered foreign agents.
Agents also must maintain all written records with respect
H.R. 5733 would waive the application of the act to
to their activities for inspection by U.S. law enforcement.
certain agents representing foreign enterprises that are
not under the control or direction of foreign
Enforcement
governments or foreign political parties.
Violations of FARA are subject to criminal and civil
S. 1762 would provide the Attorney General with the
penalties. Generally, a person who “willfully” violates the
authority to issue civil investigative demands to promote
act may face up to five years in prison and up to a $10,000
enforcement of the act.
fine.
S. 3313 would limit the registration exemption for
A 2016 Inspector General audit reported that historically
persons engaging in bona fide religious, scholastic,
the Department of Justice’s practice has been to pursue
academic, scientific, or fine arts activities to activities
voluntary compliance rather than prosecution for agents
that do not promote the political agenda of a foreign
who failed to register under the act. Between 1966, when
government.
FARA was amended to resemble its current form, and
2015, the Department of Justice brought seven criminal
Jacob D. Shelly, Legislative Attorney
FARA cases. More recently, however, the Department of
Justice has signaled that it is shifting “
IF11439
from treating FARA
https://crsreports.congress.gov
Foreign Agents Registration Act: A Legal Overview
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https://crsreports.congress.gov | IF11439 · VERSION 1 · NEW