Strengthening the Transparency and Integrity of Foreign Influence Activities in France

Annex A. The Foreign Agents Registration Act (FARA) in the United States

Description

The United States Foreign Agents Registration Act (22 U.S.C. §§611-621; “Foreign Agents Registration Act” – FARA) was enacted in 1938 against a backdrop of growing influence of Nazi propaganda in the United States. In the years leading up to World War II, the US Congress had in fact identified a number of individuals and organisations operating in the United States and spreading propaganda aimed at shaping American public opinion. These activities sought to create a positive image of the new German state and counter reports of the Nazi regime's brutality toward political opponents and Jews.

Upon the recommendation of the 73rd Congress (1934-1935) Special Committee on Un-American Activities, the FARA was passed to shed light on the use of ‘proxies’ by requiring that those engaged in propaganda activities on behalf of foreign governments register with the government and disclose information about their clients, activities and contract terms, without, however, prohibiting these activities. In this regard, FARA is often referred to as 'the oldest lobbying law in the world’.

Amended over the years, FARA currently applies broadly to any person acting on behalf of a foreign principal to influence, among other targets, US policy or public opinion.

Recognising that efforts by foreign governments to influence US domestic and foreign policies, legislation, democratic processes, and public opinion by employing lobbyists, public relations professionals, prominent businesspeople or former US government officials on their behalf, are “legal – if they are transparent”, FARA’s objective is to enable the American people and their elected representatives to understand who is really behind such influence activity, appreciate the activities they conduct in light of the established link to the foreign entity, and in doing so, better respond to national security threats.

Concretely, FARA requires certain agents who engage in specified influence activities in the United States on behalf of a foreign principal to periodically register with the Department of Justice (DOJ) their relationship with the foreign principal, as well as the activities and expenses in support of those activities. The Department of Justice is required to make such information publicly available.

Scope and definitions

FARA covers a wide spectrum of actors and activities. First, a foreign principal is not necessarily a foreign government: it may be a foreign public official (e.g. an elected public official), a foreign private sector company or a foreign individual who lives outside the United States (Table A ‎A.1).

Secondly, the existence of a written contract between a foreign agent and a foreign principal is not necessary to establish the obligation to register, nor the payment of a fee. A mere “request” from a foreign principal, for example, to help setting up meetings with US government officials, is sufficient to trigger registration if acted upon by the agent. Similarly, providing advice to a foreign principal on how best to influence US policy or public opinion could trigger registration.

Actors covered

Table A ‎A.1. Definitions of “foreign principal” and “foreign agent” in FARA

	Actors covered
Foreign principal 22 U.S.C. §611(b)(2)	(a) A government of a foreign country and a foreign political party; (b) A person (individual, partnership, association, corporation, organisation, or any other combination of individuals) outside the United States, unless it is established that such person is an individual and a citizen of and domiciled within the United States, or that such person is not an individual and is organised under or created by the laws of the United States or of any State or other place subject to the jurisdiction of the United States and has its principal place of business in the United States; and (c) A partnership, association, corporation, organisation, or other combination of persons organised under the laws of or having its principal place of business in a foreign country.
Agent of a foreign principal 22 U.S.C. §611(c)(1)	(a) Any person (individual, partnership, association, corporation, organisation or any other combination of individuals) who acts as an agent, representative, employee or servant of a foreign principal. OR Any person (individual, partnership, association, corporation, organisation or any other combination of individuals) who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidised in whole or in major part by a foreign principal. AND who, directly, or through any other person: engages within the United States in political activities for or in the interest of such foreign principal; acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal; within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States. (b) Any person (individual, partnership, association, corporation, organisation or any other combination of individuals) who agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal as defined in clause (1) of this subsection.

Source: https://www.justice.gov/nsd-fara

Decisions and public officials covered

FARA does not necessarily cover activities whose aim is to influence a decision or a public official. For example, distributing money on behalf of a foreign principal within the United States is a covered activity.

However, the definitions specify that activities involving the “representation of interests” of a foreign principal before “an agency or official of the United States Government” are covered.

Similarly, FARA covers "political activities" which means any activity that the person engaging in believes will, or that person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to:

• Formulating, adopting, or changing the domestic or foreign policies of the United States with reference to

• The political or public interests, policies or relations of a government of a foreign country or a foreign political party.

Types of activities covered

FARA covers four main types of activities, whether carried our directly or through any other person:

• Engaging within the United States in political activities for or in the interest of a foreign principal.

• Acting within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of a foreign principal.

• Within the United States soliciting, collecting, disbursing, or dispensing contributions, loans, money, or other things of value for or in the interest of a foreign principal.

• Within the United States representing the interests of a foreign principal before any agency or official of the Government of the United States.

The term “political activities” means “any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies or relations of a government of a foreign country or of a foreign political party”.

Exceptions/exemptions

FARA includes exemptions for certain agents of foreign principals who register with the Secretary of the Senate and the Clerk of the House of Representatives under the Lobbying Disclosure Act of 1995 (LDA; 2 U.S.C. §§1601-1614) and are therefore permitted to lobby the Legislative or Executive Branches. However, the exemption does not apply to agents of foreign governments and foreign political parties, —or when a foreign government or foreign political party is the principal beneficiary of the lobbying activities.

There are other categories of actors and activities that are exempted from registration requirements under FARA (22 U.S.C. §613). These exemptions are for:

• Diplomatic or consular officers – and their staff members – of a foreign government who is so recognised by the US Department of State, while said officers are engaged exclusively in activities which are recognised by the US Department of State as being within the scope of the functions of such officers.

• Officials of foreign a foreign government who are not US citizens and are not public-relations counsels, publicity agents, or information-service employees.

• Private and nonpolitical activities, including the solicitation of funds, not serving predominantly a foreign interest.

• Fundraising for humanitarian purposes.

• Religious, scholastic, academic, fine arts or scientific pursuits.

• Certain persons qualified to practice law, insofar as they engage or agree to engage in the legal representation of a disclosed foreign principal before any court of law or any agency of the Government of the United States

Disclosure regime

FARA requires foreign agents to disclose information on their activities, including on the dissemination of “informational materials” within the United States on behalf or in the interest of a foreign principal.

Initial registration

When FARA registration is required, individuals acting as foreign agents and their employer must file a registration statement within 10 days of having agreed to act as an agent of a foreign principal. Foreign agents may not begin to act as an agent of a foreign principal before registering (22 U.S.C. § 612(a)). A registration fee of USD 305 applies upon initial registration.

Each registrant must complete the following forms, available at https://www.justice.gov/nsd-fara/fara-forms:

• A Registration statement (mandatory declaration).

• Exhibit A, describing the foreign principal (mandatory declaration).

• Exhibit B, describing the nature and terms of the agreement concluded between the registrant and foreign principal, as well as the activities the registrant engages in or proposes to engage in on behalf of the foreign principal (mandatory declaration).

• Exhibit C, including articles of incorporation, association, bylaws or partnership agreement when the registrant is an association, company, organisation or any other combination of individuals.

• Short Form Registration Statements (form for each individual person of the foreign agent carrying the covered activities).

• Exhibit D, if the agent receives or collects money or other things of value as part of a fundraising campaign.

FARA imposes detailed disclosure obligations on a foreign agent's covered activities, which are much more specific and extensive than those required of registrants under the Lobbying Disclosure Act. In particular, FARA requires information about the foreign agent and the foreign principal, including a description of the activities that the agent of a foreign principal has undertaken or will undertake, financial information about funds received from the foreign principal, funds disbursed on behalf of the foreign principal and political contributions made by the foreign agent's employees.

Subsequent registrations and updates

A foreign agent must register with the Department of Justice within 10 days of agreeing to act as the agent of a foreign principal.

Registrants must file supplemental statements at six-month intervals following the date of the registrant’s initial registration. The supplemental statement, and its corresponding filing fee of USD 305 for each foreign principal, is due 30 days after the six-month reporting end date.

Any changes to the information provided in Exhibit A or B must be reported to the FARA Registration Unit within ten days of the change. The filing of a new exhibit may then be required by the Assistant Attorney General.

Data

FARA requires the Attorney General to maintain a public database of registration statements made by foreign agents (22 U.S.C. §616(d)). This database is publicly available on the Department of Justice’s FARA website under “Search Filings” (https://www.fara.gov/search.html). The database can be searched by document type (e.g. registration statement) or by actor, such as a specific foreign country, foreign principal, or individual foreign agent.

According to the latest available data (published in 2022), the register contains more than 450 active registrants representing approximately 750 foreign principals.

Registry administration, compliance and enforcement

The FARA Unit is part of the National Security Division of the Department of Justice (DoJ) and is responsible for administering and enforcing FARA. Specifically, the FARA unit:

• Provides support, guidance and assistance to registrants and potential registrants. In particular, potential registrants who are unsure whether they qualify for an exemption may submit a request for an Advisory Opinion pursuant to 28 C.F.R. (Code of Federal Regulations) §5.2. Advisory opinions, provided by the FARA unit within 30 days, are made public at the following address: https://www.justice.gov/nsdfara/advisory-opinions.

• Processes registration filings and informational materials to make those materials available to the public.

• Reviews filings for deficiencies and inspects registrant’s books and records.

• Identifies FARA violations.

Any person who believes that a person or entity may have a registration requirement, but is not registered, may contact the FARA Unit.

The FARA Unit makes registration information and disclosures available to the public to inform the public about the activities of foreign agents in the United States.

The Attorney General must submit a report to Congress on the administration of FARA every six months (22 U.S.C. §621).

Violations and sanctions

The FARA unit may send a “Letter of Inquiry” to an entity or person if the FARA Unit obtains credible indications that a registration obligation exists. The letter will notify the entity or person of the possible registration obligation and may seek additional information to inform the Unit’s view whether a registration obligation exists.

Failure to comply with FARA provisions may result in fines or imprisonment (22 U.S.C. §618): persons who willfully violate FARA statutory provisions or associated regulations are subject to fines of up to USD 10 000 and a prison sentence of up to five years.

If the Attorney General determines that the filing or disclosure documents do not comply with the law, filers generally have the opportunity to file an amended declaration before legal action is initiated.

Impact and planned reforms

Between 1966 and 2016, FARA led to only seven prosecutions (Covington, 2023[1]). Since the suspected Russian interference in the 2016 US election, the number of prosecutions has increased significantly. Indeed, the investigation into the suspected interference led, in 2018, to the indictment of thirteen Russian nationals and three Russian companies for committing federal crimes while seeking to interfere in the United States political system, including the 2016 Presidential election. The defendants allegedly conducted “information warfare against the United States,” with the stated goal of “spread[ing] distrust towards the candidates and the political system in general.” The indictment alleged that the defendants failed to register and disclose their activities under FARA.

According to the report of Special Counsel Robert Mueller, digital technologies played a key role in this Russian attempt to influence the 2016 US presidential elections, and preparations for this ambitious interference operation started several years earlier. Indicted individuals and companies were indeed part of so called “Project Lakhta”, which, since 2014, has sought to obscure its conduct by operating through various entities, such as the Russian Internet Research Agency (IRA), which employs hundreds of persons for its online operations, ranging from creators of fictitious personas to technical and administrative support, with an annual budget of millions of dollars (U.S. Department of Justice, 2019[2]). Since then, the FARA Unit has strengthened its monitoring activities.

Numerous other criticisms have been directed towards FARA, with one prominent concern being the existence of two different regulatory frameworks for foreign lobbyists/foreign influence (FARA) and domestic lobbyists/domestic influence (Lobbying Disclosure Act – LDA). These two laws have different disclosure requirements (with FARA requiring much more extensive disclosures) and are administered by two different entities: FARA by the Department of Justice (DOJ) and LDA by Congress. To streamline the administration of lobbying registration and disclosure, it has been suggested that the administration and enforcement of FARA and the LDA be combined either at DOJ or in Congress to consolidate the oversight of all lobbying-related activities, whether of domestic or foreign origin. However, as both regulations have been in force for many years (1938 for FARA and 1995 for LDA), it is unlikely that such a change will be made (Congressional Research Service, 2024[3]).

Second, the DOJ and several legislators have suggested that the LDA exemption included in FARA (22 USC 613(h)), which allows foreign principals (a) and (b) in Table A ‎A.1 to register under the LDA rather than FARA, should be repealed. Originally, this exemption was introduced to create a principle of fairness between companies operating in the same industrial sector (e.g. a foreign automobile company and a US automobile company) that would seek to influence US decision-making processes and that would seek to do so solely by representing their commercial interests, and thus not subject a foreign company to a much more extensive disclosure regime (FARA) than an US company (LDA). However, this exemption is now causing confusing because it covers a significant grey area – that of foreign state-owned enterprises or enterprises that act de facto under the direction or control of a foreign state. For example, Huawei is now registered with FARA due to established links between its influence activities in the United States and the Chinese Communist Party (CCP), which administers and largely subordinates Chinese economic entities (Open Secrets, 2019[4]). Previous cases confirm that actors have sought to conceal their criminal violations of FARA by making fraudulent LDA filings. Several proposed amendments to FARA, including a repeal of the exemption have already been considered by Congress.

References

[3] Congressional Research Service (2024), Foreign Agents Registration Act (FARA): An Overview, https://crsreports.congress.gov/product/pdf/IF/IF10499.

[1] Covington (2023), The Foreign Agents Registration Act (FARA): A Guide for the Perplexed, https://www.cov.com/en/news-and-insights/insights/2018/01/the-foreign-agents-registration-act-fara.

[4] Open Secrets (2019), US firms register as foreign agents of embattled Chinese telecom giant Huawei, https://www.opensecrets.org/news/2019/03/us-firms-register-as-foreign-agents-of-embattled-chinese-telecom-giant-huawei/.

[2] U.S. Department of Justice (2019), Special Counsel Robert S. Mueller, III. Report On The Investigation Into Russian Interference In The 2016 Presidential Election. Volume I of II Submitted Pursuant to 28 C.F.R. § 600.8(c), https://www.justice.gov/archives/sco/file/1373816/download.