Foreign Agents Registration Act (FARA): A Legal Overview

Foreign Agents Registration Act (FARA): A Legal Overview

Updated March 9, 2023
Foreign Agents Registration Act (FARA): A Legal Overview
In 1938, Congress enacted the Foreign Agents Registration
“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 individuals and entities acting within the
unless the foreign funder subjects the recipient to its
United States on behalf of foreign interests.
direction or control.
While the act has been amended many times, the early
Third, an agent must act within the United States in one of
framework endures: persons defined as “agents” of a
the following ways:
“foreign principal” must register with the U.S. government,
make a public record of the nature of their principal-agent
 engaging in “political activities” in the interests of a
relationship, and maintain all private records for official
foreign principal, which FARA defines to include any
inspection. FARA includes broad registration exemptions,
activities believed or intended to influence the U.S.
however, and, because there have been relatively few
government or public about U.S. policy or other foreign
administrative or judicial enforcement actions over the
interests;
years, a number of ambiguities about the scope of the act’s
 acting as a publicity agent or political consultant in the
requirements and exemptions persist.
interests of the foreign principal;
Who Is a Foreign Principal?
 soliciting, collecting, or disbursing money or other
FARA defines foreign principal to include
things of value in the interests of a foreign principal; or
 governments of foreign countries;
 representing the interests of a foreign principal before

any agency or official of the U.S. government.
foreign political parties;
 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:
 persons 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 agent of a foreign principal has three
 at least 80% beneficially owned by U.S. citizens;
necessary components that focus on the type of influence

exerted over the agent, who is wielding influence over the
run by officers and directors who are U.S. citizens;
agent, and the activities the agent is performing as part of
and
this relationship.
 not owned, directed, supervised, controlled,
subsidized, or financed by any foreign principal or
First, an agent must act at “the order, request, or under the
agent.
direction or control” of another. The Second Circuit has

recognized that the “exact parameters of a ‘request’ under
Foreign diplomats, consular officers, or other
the act are difficult to locate, falling somewhere between a
recognized officials and staff.
command and a plea.” Holding that no single factor is
 Persons engaging in private and nonpolitical activities in
determinative, the court determined that “[o]nce a foreign
furtherance of a foreign principal’s bona fide trade or
principal establishes a particular course of conduct to be
commerce. By regulation, commercial activities of state-
followed, those who respond to its ‘request’ for complying
owned companies are considered “private” “so long as
action may properly be found to be agents under the Act.”
the activities do not directly promote the public or
This is a broader conception of agency than courts
political interest of the foreign government.” However,
traditionally apply in other areas of law, where a “request”
the Department of Justice (DOJ) has concluded that
may not be enough to establish that the agent’s actions
tourism promotion is not private or nonpolitical activity
subject the principal to legal liability.
because tourism fosters economic development, which
is in every foreign government’s public and political
Second, an agent must act at the behest of either (1) a
interests.
foreign principal or (2) a person whose activities are
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Foreign Agents Registration Act (FARA): A Legal Overview
 Persons engaged in the solicitation or collection of
record number of criminal FARA cases. Additionally, in
humanitarian funds to be used only for medical
rare uses of its civil enforcement power, in 2019 the DOJ
assistance, food, and clothing.
required a Florida broadcast company involved in the

distribution of a Russian radio channel to register as a
Persons engaging only in activities in furtherance of
foreign agent, and in 2022 the DOJ sued to compel a U.S.
bona fide religious, scholastic, academic, or scientific
businessperson to register as a foreign agent.
pursuits, or of the fine arts.
 Attorneys engaged in the legal representation of a
Proposals for Reform
foreign principal before a U.S. court or agency as part of
A 2016 DOJ inspector general report recommended several
an official proceeding or inquiry.
legislative changes that could help the DOJ administer and

enforce FARA, including the following:
Agents engaged as lobbyists for a foreign
nongovernmental person, corporation, or organization if
 Refining the act’s broadly worded exemptions, which
the agent has registered under the Lobbying Disclosure
may make it difficult to determine whether think tanks,
Act of 1995.
nongovernmental organizations, university and college

campus groups, foreign media entities, and grassroots
Persons engaging in other activities not serving
organizations that receive funding and direction from
predominantly a foreign interest.
foreign governments qualify as foreign agents.
Reporting and Record-Keeping
 Providing the DOJ’s FARA Unit with civil investigative
Requirements
demand authority to allow law enforcement to compel
Agents of foreign principals that are not otherwise exempt
the production of records and testimony from suspected
must comply with FARA’s registration requirements,
foreign agents.
disclosure requirements, and record-keeping requirements.
 Updating the disclosure and labeling requirements to
reflect the practical effects of internet and social media
Covered entities must file a registration statement with the
communications. For example, at the time of this report,
DOJ within 10 days of becoming an agent of a foreign
Twitter’s character limits precluded agents from
principal. The registration statement must include, among
appending a full disclosure to each tweet.
other information, the name and address of every foreign
principal for whom the agent is acting, a comprehensive
In December 2021, the DOJ issued an Advanced Notice of
statement of the activities to be performed by the agent on
Proposed Rulemaking seeking suggestions for any potential
behalf of the foreign principal, and the nature and amount
amendments to, or clarifications of, the current FARA
of compensation the agent is to receive for these efforts.
implementing regulations. The DOJ sought preliminary
Agents must update these filings every six months.
input on matters such as the scope of an agency relationship
with a foreign principal, FARA exemptions, advisory
An agent of a foreign principal must also file public copies
of any “informational materials” that the agent
opinions, and labeling of informational materials.
disseminates
among two or more persons in the interests of a foreign
In recent years, congressional interest in FARA has
principal. These materials must include a conspicuous
increased. Several bills were introduced (but not enacted) in
statement that the materials are distributed by an agent on
the 117th Congress that sought to amend various parts of
behalf of a foreign principal.
FARA. Broadly, some of these bills proposed to:
Agents must also maintain all written records with respect
 provide civil investigative demand authority to DOJ,
to their activities for inspection by U.S. law enforcement.
Enforcement
 change penalties for non-compliance with registration
requirements,
Violations of FARA are subject to criminal and civil
penalties. Generally, a person who “willfully” violates the
 repeal or modify FARA exemptions,
act may face up to five years in prison and up to a $10,000
fine.
 amend FARA registration and disclosure requirements
and public access to documents,
A 2016 inspector general audit reported that historically the
DOJ’s practice has been to pursue voluntary compliance
 alter requirements for the labeling of informational
rather than prosecution for agents who failed to register
materials,
under the act. Between 1966, when FARA was amended to
resemble its current form, and 2015, the DOJ brought seven
 restrict certain former officials from acting as foreign
criminal FARA cases. More recently, however, the DOJ has
signaled that it is shifting “
agents, and
from treating FARA as an
administrative obligation ... to one that is increasingly an
 modify DOJ’s FARA administration.
enforcement priority.” For example, Special Counsel
Robert Mueller’s investigation into Russian influence
during the 2016 election resulted in several high-profile
Whitney K. Novak, Legislative Attorney
FARA convictions. In 2022, the DOJ reported it charged a
IF11439
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Foreign Agents Registration Act (FARA): A Legal Overview

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