What is FARA?

The Foreign Agents Registration Act (“FARA”) imposes disclosure requirements and other legal obligations on any individual or entity that becomes an “agent of a foreign principal” unless an exemption applies.

FARA is a public-disclosure statute originally enacted in 1938 as a legislative response to extensive foreign propaganda activities in the U.S. during the run-up to World War II, which included a 20,000-person rally held in Madison Square Garden.  Congress hoped that, through FARA, the “spotlight of pitiless publicity [would] serve as a deterrent to the spread of pernicious propaganda.”  FARA has since been amended 10 times, with the most significant overhaul occurring in 1966.

FARA is codified at 22 U.S.C. § 611 et seq. and its implementing rules are located at 28 C.F.R. § 5.1 et seq.  The Department of Justice, which enforces and administers FARA, has also issued advisory opinions and other guidance interpreting the law.

Who is a "Foreign Principal"?

FARA defines “foreign principal” broadly to include:

In other words, foreign government entities, political organizations, businesses, nonprofits, state-owned enterprises, and even individuals are all “foreign principals” under FARA.

Who is an "Agent"?

An “agent” is an individual or entity that acts “within the United States” at the order, request, direction, or control of either: (1) a “foreign principal”; or (2) a person “any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a “foreign principal.”  An individual or entity can become an “agent” even without a contractual relationship or formal agreement with a “foreign principal.”  

Courts have used the Restatements of Agency as a guide in assessing “agent” status, but they have also departed from traditional conceptions of agency law at times by, for instance, finding that common personnel, shared facilities, and coincidence in views were insufficient to create an “agent”-“principal” relationship under FARA. 

An “agent” is typically identified through practical indicators, such as contractual language, reporting lines, payment streams, and statements found within emails, internal files, and work product that appear to indicate one party is working for another.

Acting within the United States at another’s order, request, direction, or control is insufficient by itself to create “agent” status under FARA, though.  In order to be an “agent,” an individual or entity must also engage in FARA-registrable activity.

What Activities Require Registration?

In order to be an “agent,” an individual or entity must perform one of the following specified FARA-registrable activities within the United States “for or in the interests of” its “foreign principal”:

An individual or entity acting at the order, request, direction, or control of a principal within the United States can trigger “agent” status under FARA by engaging in any single one of the above-listed activities.

Does FARA Exempt Any Activities from Registration?

An individual or entity who fits the definition of “agent of a foreign principal” may nonetheless not be required to register under FARA if an exemption applies.  FARA exempts several categories of “agents” from its registration requirements, including the following:

FARA also allows the President and the Attorney General to formally exempt “agents” acting on behalf of certain foreign countries under particular circumstances. The Department of Justice advisory opinions can offer more context and information about most of the FARA registration exemptions.

Please note that the burden is initially on the “agent” to show that an exemption applies in a specific situation.

What Steps Are Necessary to Register Under FARA?

An “agent of a foreign principal” who is not eligible for an exemption must register with the Department of Justice within 10 days after initially either agreeing to be an “agent” or performing FARA-registrable activities.  FARA registration, which is typically filed by the law firm, lobbying firm, or public-relations firm, is accomplished by submitting the following forms:

A filing fee of $305 must be paid with each FARA registration.  A registration is typically submitted through the Department of Justice’s electronic filing system.

What Happens After Registration?

After registration, an “agent of a foreign principal” is subject to the following ongoing disclosure requirements and other legal obligations:

The disclosure requirements and legal obligations imposed on a registered “agent” should be carefully observed with assistance of legal counsel.

How is FARA Enforced?

The Department of Justice’s FARA Registration Unit is tasked with policing FARA violations.  Historically, the Department has encouraged voluntary compliance over bringing enforcement cases, but it has pursued criminal and civil enforcement actions with increasing frequency in recent years.

Criminal enforcement cases are brought when an individual or entity “willfully” fails to register under FARA, makes a false statement of material fact on a FARA filing, or omits a material fact in a FARA filing. A violation is “willful” when the violator is aware that his/her/its conduct is unlawful.  Generally, a “willful” violation carries a penalty for the violator of up to five years in prison and up to a $10,000 fine.  In the 81-year history of the statute, the U.S. government has pursued a total of 46 criminal cases to resolution.

Civil and administrative enforcement cases are brought when there is “sufficient credible evidence of a significant violation” of FARA.  The Department of Justice can file a civil injunction to force a party to register under FARA, but generally does not impose any civil penalty unless it is agreed upon in a settlement agreement.  In the 81-year history of the statute, the U.S. government has pursued a total of 18 civil enforcement cases to resolution.

The Department of Justice develops criminal and civil enforcement cases by conducting audits and by sending Letters of Inquiry, which usually include requests for documents and narrative responses, from potential registrants.  The Department typically conducts roughly 14 audits and sends approximately 20 Letters of Inquiry on an annual basis.

No private right of action is available under FARA, but the Department of Justice does receive FARA-related complaints from private parties.

An Informational Resource in a New Era of Foreign Agents Registration Act Enforcement.



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