In 1938, President Roosevelt signed the Foreign Agents Registration Act (“FARA” or “the Act) in order to “expose foreign influence in American politics, with a specific focus on identifying and making a public record of attempts to spread propaganda and foreign agendas.” At the time, Congress and the President were concerned with the influence that Nazi propaganda could have in the United States. Today, FARA still seeks to expose foreign influence in the United States, but the vague text of the law has led to uneven enforcement by the Department of Justice (“DOJ”). This uneven enforcement has caused attorneys with knowledge of the Act to call for reform of the Act, from individual scholars, to the American Bar Association itself.
I. The Text of FARA is Broad and Difficult to Apply.
Codified at 22 U.S.C. §§ 611-21, FARA requires any person who acts as an “agent of a foreign principal” to file a registration statement with the Attorney General. Finding out who qualifies as an agent of a foreign principal is a challenge, as the definition of “agent of a foreign principal” is broad; it includes everyone who “acts as an agent” or “ “acts… at the order, request, or under the direction or control” of a foreign principal, as well as “a person any of whose activities are directly or indirectly supervised… or subsidized in whole or in major part by a foreign principal.” Foreign principals, meanwhile, include anything from a foreign government, a foreign political party, or a person who resides outside the United States and is not a United States citizen. These categories are overly broad, leading to over 700 entities to register as a foreign principals including tourism boards and organizations seeking pardons for U.S. citizens.
Once registered, a foreign agent must file copies of any informational materials intended to be “disseminated or circulated among two or more persons.” Informational materials is not defined in the act, but it is construed as a broad term: it covers materials from tweets that advocate a political cause to informative articles about dog friendly hotels in Aruba. Additionally, the foreign agent must also place a “conspicuous statement that the materials are distributed… on behalf of the foreign principal,”as well as maintaining a record of any activities with the foreign principal that must be kept open for inspection. If a foreign agent wilfully fails to comply with any of these provisions or omits a material fact in their registration form, they may face a fine of up to $10,000, or imprisonment up to five years.
II. DOJ’s Limited Enforcement Highlights FARA’s Negative Aspects.
The purpose of FARA is to expose foreign influence in American political life, but the broad language of the statute detailed above also ensnares benign behavior, affecting those who may wish to work with foreign entities. Some of the enforcement actions that the DOJ undertakes are seen as largely uncontroversial, such as the indictment of Russian-based companies who sought to influence the 2016 election. However, some enforcement actions seem to be incongruent with the original nature and purpose of the act, which was narrowly tailored to ensure that American political life is not covertly influenced by foreign actors. For example, when the Norwegian Government helped fund the National Wildlife Federation’s project to improve the sustainability of supply chains across tropical climates, the DOJ required the National Wildlife Federation to file as an agent of a foreign principal. This action by the DOJ surprised and alarmed nonprofits across the nation, as many of these groups rely on international funding but still maintain operational independence. Being branded as a foreign agent would be detrimental to the perception that these organizations are independent from their funders, foreign or domestic. These examples highlight two extremes, but the fact that FARA covers so many activities should be a cause for concern, as the Act could easily be politicized or abused to prosecute politically unpopular activities.
Indeed, there are examples of FARA-like legislation being abused or politicized across the world. Nicaragua, for example, has enacted their very own foreign-agent law, which has not been used to tamp down on foreign interference with elections, or even to expose the fact that their National Wildlife Federation was under Norwegian influence. Rather, the Nicaraguan government used this law to target political dissidents. When international condemnation followed, the Nicaraguan government pointed to the existence of the United States’ FARA as a justification for their own law, and noted that they had copied the text of the U.S.’ FARA legislation directly. While the idea of the DOJ using FARA to go after political dissidents is a step too far for most, there are politicians, such as Florida Governor Ron Desantis, who is characterizing the DOJ’s enforcement of FARA against his press secretary, who was made to retroactively register under the Act for working for Mikheil Saakashvili, former president of Georgia, and receiving $25,000 for her services as “a totally ridiculous attempted smear.”
III. FARA Should Be Reformed So It Can Better Serve Its Original Purpose.
Despite the many flaws in FARA’s current iteration, the law seeks to reach an admirable goal, and thus must be fine tuned to meet that goal. Because FARA’ problems range from the text of the law itself to its uneven application, there are a myriad of well-reasoned proposals on how to reform the Act. Most notably, the American Bar Association’s International Law Section convened a task force to address FARA reform. In their report, the task force outlines in detail issues and proposed reforms to deal with the multiple issues of the Act. Some of the proposed reforms require changing the text of the legislation itself, such as narrowing the definitions of foreign principals and agents, while others only require the DOJ to enact clear rules and regulations around FARA enforcement, such as internally defining what constitutes “informational materials.” Additionally, the broad language of FARA gives future administrations the opportunity to go after political dissidents, as seen in other countries with similar laws. There are also many other proposals from scholars on how to reform FARA, ranging from updating the Act to “Address Propagandists on Social Media” to limiting its reach to “those who clearly are acting at the direction… of a foreign government or political party; and… when the covered activity involves core democratic processes.” Regardless of the path that reform takes, FARA should not be left in its current state, as the broad language of the law has led to benign actors getting caught up in the statutory scheme of the Act. Ultimately, FARA’s text and enforcement should be narrowed to better serve its original purpose of exposing “propaganda and foreign agendas.”
Author Biography: Esteban Munoz Calle is a Moderator of the International Law Society’s International Law and Policy Brief (ILPB) and a J.D. candidate at The George Washington University Law School. He has a Bachelor of Arts in Political Science and International Relations from Gonzaga University.