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Late last month, President Trump issued a Presidential Memorandum that reprioritized FARA enforcement by directing federal agencies to investigate “non-governmental organizations and American citizens residing abroad or with close ties to foreign governments, agents, citizens, foundations, or influence networks engaged in violations of the Foreign Agents Registration Act.” 

Against that backdrop, it is notable that the Department of Justice recently posted without the customary public notice six new FARA advisory opinions.  (Hat tip to attorneys at Venable LLP who found five of the opinions through a FARA.gov site search.)  All but one of these newly posted advisory opinions relate to a key FARA exemption for “other activities not serving predominantly a foreign interest” at 22 U.S.C. § 613(d)(2).  The Department did not chart any new territory in these opinions, as it largely just reemployed an approach to this “Other Activities Exemption” that it has experimented with since 2023.  But the federal government’s renewed focus on FARA makes even subtle nuances and trends in this area particularly relevant to U.S. nonprofits engaged in cross-border activities.

WHAT IS THE BACKGROUND CONTEXT FOR THESE NEW OPINIONS?

 Under a 2003 regulation, the Department extended the Other Activities Exemption for two decades to prospective “agents” of both foreign for-profits and foreign nonprofits so long as their activities were “neither directed by a foreign government or foreign political party nor intended to promote the interests of either.” 

Because the Other Activities Exemption allows for engagement in “political activities,” the Exemption’s importance has steadily increased as the Department has continually expanded the list of actions considered to be “political activities” and thereby made other registration exemptions unavailable or uncertain in many situations.  Consequently, U.S. individuals, firms, and organizations who work and interact with foreign corporations, individuals, associations, and other groups have relied on this Exemption perhaps more than any other.  The Exemption has, in fact, often been the primary reason those working with private foreign for-profits, nonprofits, and individuals have not been required to register under FARA.

The Department began drifting from its historical approach to the Other Activities Exemption starting in late 2023, when it fielded an advisory opinion request from a U.S. nonprofit that received a grant from a private foreign NGO for a program that was directed, controlled, and formulated by the U.S. nonprofit.  In finding that the U.S. nonprofit was eligible for the Exemption, the Department repeated its traditional language (i.e. that the U.S. nonprofit was exempt because its “activities were not directed by and did not directly promote the public or political interests of a foreign government or foreign political party”), but the Department did so based on an uncharacteristically long list of factors:

• The grant-funded activities fit within the U.S. nonprofit’s organizational mission;
• The grant-funded activities reflected only the U.S. nonprofit’s “own organizational viewpoints, goals, and directives”;
• The U.S. nonprofit did not “represent the views of any grantor or hold itself out as representing any grantor;
• The U.S. nonprofit’s personnel were “not directed or controlled by” any grantor;
• The grant-funded activity would continue regardless of whether the foreign nonprofit provided the grant; and
• The foreign nonprofit did not “dictate any of the described methods or milestones.”

As it turns out, this opinion released in early 2024 was the Department’s early test run for a “totality of the circumstances” approach to the Other Activities Exemption that it later formally unveiled and proposed in a wide-ranging January 2, 2025 Notice of Proposed Rulemaking.  If ever adopted fully, the Department’s “totality” proposal would shift many FARA analyses from a focus on any nexus with a foreign government or foreign political party over to the application of a non-exhaustive multi-factor test to determine whether a foreign interest “predominates,” regardless of whether that foreign interest is a private interest or a governmental/political interest.

The Department’s “totality” proposal was almost universally opposed in public comments submitted as part of the Rulemaking in early March 2025, with members of the regulated community noting that the proposal would violate congressional intent, depart arbitrarily and capriciously from the Department’s prior regulation, and saddle the Department with making impracticable line-drawing determinations.  With the transition to the Trump Administration, the status of this Biden era “totality” proposal has been in limbo and FARA practitioners have spent the intervening months attempting to predict whether it might move forward toward adoption.  The recently posted FARA advisory opinions serve as the latest “tea leaves” available in this respect.

WHAT DO THESE NEW OPINIONS TELL US?

These newly posted advisory opinions essentially tell us what we already knew: the Department has not yet decided fully whether to drop or adopt its “totality” approach to the Other Activities Exemption.

The Advisory Opinion issued on October 16, 2024 is likely to garner the most attention because of its potential breadth.  In that opinion, a U.S. nonprofit planned to collaborate with a foreign research NGO with whom it shared "ideological views" to co-host a conference outside the United States that would "highlight key aspects of political philosophy and various ideas ... for educational purposes" and feature "[p]oliticians, world leaders, and political thinkers from various countries." The nonprofits intended to execute an agreement that called for a "joint effort" to "bring success for both organizations" and proposed a "division of labor," with the costs for American invitees initially paid out by the U.S. nonprofit and ultimately allocated between the nonprofits "by mutual agreement."  Both nonprofits were to make decisions about the conference agenda "in concert," but the U.S. nonprofit stipulated that it would have "all final decision-making authority" over its activities.  Without any meaningful analysis, the Department concluded that the U.S. nonprofit was an "agent" because it would be "responsible for paying travel costs and expenses for U.S. policymakers and media that it invites to attend" the co-hosted conference in a foreign location and therefore would be “disburs[ing] or dispens[ing] ... money, of other things of value for or in the interest of [a] foreign principal.” 

Although this October 16th Opinion appears at first glance to be expansive in how it describes FARA’s scope, there are several reasons to think this opinion does not create a brave new world where any cross-border collaboration triggers FARA registration for a U.S. nonprofit:

• The requestor of the October 16th Opinion did not ask about the availability of the Other Activities Exemption. Because the requestor did not assert that any exemption applied, the Department’s analysis of the Other Activities Exemption is limited to a brief footnote.  It is unlikely that the Department intended to radically remake the Other Activities Exemption and the entire FARA landscape through a single advisory opinion’s short footnote.
• The October 16th Opinion did not correctly recite relevant facts or address other important issues. The Department’s brief analysis misstates several relevant facts and fails to address important issues, such as the possibility that the activity was not “within the United States” or the distinction between a collaborative relationship and an agent-principal relationship.  FARA opinions have modest precedential value in any event, but these obvious deficiencies suggest the October 16th Opinion could carry even less weight than usual.
• The timing of the October 16th Opinion may be relevant. The October 16th Opinion was issued prior to the publication of the 2025 Notice of Proposed Rulemaking and before the beginning of the Trump Administration, which means that the October 16th Opinion may not represent the current views of a Department that has now received public comments on the “totality” proposal and that is now led by different personnel.  To the extent one can glean any insights from FARA advisory opinions, those issued after the close of the Rulemaking comment process and after the Administration took office are more likely to represent the present views of the Department. 
• Later FARA advisory opinions that fully analyze the application of the Other Activities Exemption show a more traditional approach. Advisory opinions issued in 2025 purport to evaluate an activity’s foreign and domestic “predominance,” as the “totality” proposal called for, but the Department seems to be back to their traditional approach of applying the Other Activities Exemption so long as the work of an “agent” was “neither directed by a foreign government or foreign political party nor intended to promote the interests of either.”  Mostly notably, in a June 9, 2025 Opinion, a U.S. nonprofit operated under a "shared services agreement" and had an overlapping CEO and Board members with a foreign entity, which was also responsible for appointing all the U.S. nonprofit’s management.  In an effort to "build on the work of" the foreign entity, the U.S. nonprofit created and disseminated "downloadable digital reports recommending policy changes for online platforms and governments" through various methods, including through direct communications with U.S. government officials.  The Department found that the U.S. nonprofit was eligible for the Other Activities Exemption because: (1) the nonprofit's activities would "directly advance" its "objectives and focus entirely on addressing conduct and harms in the United States"; and (2) the nonprofit would not be directed by, or "directly promote" the public or political interests of, a foreign government or foreign political party.  This fully controlled U.S. nonprofit’s domestic interests in the June 9th Opinion were by any metric far less “predominant” than those of the longstanding nonprofit that wanted to co-host a single international conference with an otherwise unaffiliated foreign NGO in the October 16th Opinion.  Indeed, given that the U.S. nonprofit in the June 9th Opinion was under a foreign entity’s comprehensive control and was expressly engaged in activity to “build on the work of” the foreign entity, it is not clear the U.S. nonprofit had any independent domestic interests at all that it could “directly advance.”  The Department’s latest posture here, then, seems to be that it will pay lip service to the need for a “predominant” domestic interest but will accept even a domestic interest that is wholly subsumed and controlled by a foreign interest. 

FARA trends are difficult to predict in such a dynamic enforcement and regulatory environment, but it does appear that the Department is returning to its traditional approach of focusing analysis on governmental/political foreign interests under the Other Activities Exemption and edging away from the “totality of the circumstances” proposal.

WHAT SHOULD WE TAKE AWAY FROM THESE NEW OPINIONS?

FARA advisory opinions are notoriously inconsistent, so nobody should overreact or underreact to any single opinion or even any batch of opinions.  With that said, these six new FARA advisory opinions offer a few valuable takeaways for the regulated community:

• Scrutinize boilerplate language. Although the U.S. nonprofit in the October 16th Opinion stipulated that it would have "all final decision-making authority" over its activities, the Department remarked in a footnote that the terms of the nonprofit’s agreement with the foreign NGO expressly "create[d] a principal-agent or employment relationship as defined by the laws of the United States" between the organizations.  Boilerplate agreement language can give rise to an agent-principal relationship, even if it does not necessarily reflect the actual relationship between two organizations.  S. nonprofits should therefore closely review all language in any agreement with a foreign organization.
• Don’t call it a contract. The Department’s recent analyses show that it sometimes mistakenly assumes that a contract imposes one-way obligations and cannot serve as a mechanism for multiple parties to pursue joint interests of mutual benefit.  S. nonprofits should consider memorializing a collaborative arrangement as a “memorandum of understanding” that more clearly conveys a collaborative agreement’s mutual nature.
• Articulate domestic interests. The Department’s June 9th Opinion exempted a U.S. nonprofit, in part, because it had a domestic interest to “directly advance.”  U.S. nonprofits should therefore catalogue and memorialize all organizational interests to be served through collaboration with a foreign entity.

You can read summaries of all published FARA Advisory Opinions here: https://www.fara.us/resources-opinions.

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