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Foreign Agents Registration Act
This article needs to be updated. Please update this to reflect recent events or newly available information.(December 2019)
United States law regulating foreign lobbying
Foreign Agents Registration Act
Other short titles
Foreign Principal Registration Act of 1938
An Act to require the registration of certain persons employed by agencies to disseminate propaganda in the United States and for other purposes.
The Act originally was administered by the Department of State until transferred to the Department of Justice in 1942. From its passage in 1938 to 1966, when the Act was amended, enforcement focused on propagandists for foreign powers even if it was not "for or on behalf of" those powers. It was used in 23 criminal cases during World War II. For cases not warranting prosecution, the Department of Justice sent letters advising prospective agents of the law.
In 1966 the Act was amended and narrowed to emphasize agents actually working with foreign powers who sought economic or political advantage by influencing governmental decision-making. The amendments shifted the focus of the law from propaganda to political lobbying and narrowed the meaning of "foreign agent." From that moment on, an organization (or person) could not be placed in the FARA database unless the government proved that it (or he or she) was acting "at the order, request, or under the direction or control, of a foreign principal" and proved that it (or he or she) was engaged "in political activities for or in the interests of such foreign principal," including by "represent[ing] the interests of such foreign principal before any agency or official of the Government of the United States."
That increased the government's burden of proof; since 1966, there have been no successful criminal prosecutions under FARA. However, a civil injunctive remedy also was added to allow the Department of Justice to warn individuals and entities of possible violations of the Act, ensuring more voluntary compliance but also making it clear when the law has been violated. This has resulted in a number of successful civil cases and administrative resolutions since that time.
In 1995, the term "political propaganda" was removed from Subsection 611 following the 1987 Supreme Court case, Meese v. Keene, in which a California State Senator wanted to distribute three films from Canada about acid rain and nuclear war, but felt his reputation would be harmed if he distributed films that had been classified officially as "political propaganda." The court backed up an earlier lower court ruling in favor of one of the film's distributors in Block v. Meese. The Lobbying Disclosure Act of 1995 (LDA), 2 U.S.C. § 1601, removed from the Act certain agents engaged in lobbying activities who register under that Act, which is administered by Congress.
An online search of FARA registrants was added by the United States Department of Justice(FARA Quick Search). In 2004 the Justice Department stated that the Foreign Agent Registration Unit's database for tracking foreign lobbyists was in disrepair. However, in 2007, the Justice Department launched an online database which can be used by the public to search filings and current reports.
Following a spike in public attention, registrations, and prominent cases in the late 2010s, in 2020 Foreign Affairs magazine declared, "FARA is no longer a forgotten and oft ignored piece of New Deal-era reforms. Eight decades after being enacted, FARA is finally worth the paper it was written on."
The Act requires periodic disclosure of all activities and finances by:
people and organizations that are under control of
a foreign government, or
of organizations or of persons outside of the United States ("foreign principal"),
if they act "at the order, request, or under the direction or control" (i.e. as "agents")
of this principal or
of persons who are "controlled or subsidized in major part" by this principal.
Organizations under such foreign control can include political agents, public relations counsel, publicity agents, information-service employees, political consultants, fundraisers or those who represent the foreign power before any agency or official of the United States government.
The law does not include news or press services not owned by the foreign principal. It also provides explicit exemptions for organizations engaged in "religious, scholastic, academic, or scientific pursuits or of the fine arts," as well as for those "not serving predominantly a foreign interest."
There have been several dozen criminal prosecutions and civil cases under the Act. Among the most prominent are:
United States v. Peace Information Center, 97 F. Supp. 255 (D.D.C. 1951). which the US government claimed that the peace organization led by Pan-Africanist African American Civil Rights activist W. E. B. Du Bois was spreading propaganda as an agent of foreign governments. The trial judge dismissed the case for lack of evidence.
United States v. John Joseph Frank (D.D.C. 1959) where Frank's lack of registration as an agent of the Dominican Republic was aggravated by the fact that the defendant had been notified by letter of his burden to register.
Attorney General v. Irish Northern Aid Committee (1981) in which the government sought to compel the committee, which was already registered under FARA, to register more specifically as an agent of the Irish Republican Army (IRA). The committee, based in Belfast, Northern Ireland which collected money from supporters in the U.S., denied a relationship with the IRA and claimed selective prosecution was based on the Attorney General's hostility towards their beliefs. While failing to do so in 1972, in May 1981, the U.S. Department of Justice won a court case forcing the committee to register with the IRA as its foreign principal, but the committee was allowed to include a written disclaimer against the court ruling.
Attorney General v. The Irish People, Inc. (1986) in which the court found that the Irish Northern Aid Committee's publication The Irish People also must register under the Act and with the IRA as its foreign principal.
United States v. McGoff: 831 F.2d 1071 (D.C. Cir. 1987) shortened the statute of limitations for agents who refuse to register, contrary to the express language in Section 8(e) of the Act.
United States v. Susan Lindauer et al (2004) involved a former U.S. Congressional staffer and journalist whom the U.S. government alleged had violated pre-war Iraq financial sanctions by taking payments from Iraqi intelligence operatives. In addition to charges under the FARA, Lindauer was indicted for Title 18 Section 2332d (financial crimes) and placed under the International Emergency Economic Powers Act (IEEPA). During and after her one-year incarceration, she was twice judged incompetent to stand trial. In court, Lindauer won against USDOJ efforts to forcibly drug her with anti-psychotic medication. The case was dropped in 2009.
United States v. Samir A. Vincent (2005) included a charge of conspiracy to act as an unregistered agent of a foreign government in the "oil-for-food" scandal helping Saddam Hussein's government. Samir was fined $300,000 and sentenced to probation.
The Overseas Friends of the BJP (OFBJP--BJP being the ruling Bharatiya Janata Party of India), after 29 years in operation in the United States, formally registered as a "foreign agent" on 27 August 2020.
There have been proposals to reform FARA to both improve enforcement of the Act and to modernize and better target its provisions. In September 2016, the Office of the United States Department of Justice Office of the Inspector General released an audit of the National Security Division's enforcement of FARA. The audit noted that National Security Division officials had proposed amending FARA to provide the Justice Department with civil investigative demand authority to better enforce the Act and to eliminate the Lobbying Disclosure Act exemption to improve compliance.
Nonprofits have complained that the broad definitions in FARA can capture much routine nonprofit activity, requiring them to potentially register as foreign agents. In response, there have been proposals to amend the Act to define foreign principals under the Act to only be foreign governments or political parties or those operating on their behalf, as well as amend the current broad and unclear agency definition in FARA to instead mimic the Restatement of the Law of Agency, Third definition.
In July 2020, Attorney GeneralWilliam Barr warned U.S. companies and executives that advocating on behalf of Chinese government interests may violate FARA requirements.
Chronology of amendments
Chronology of amendments to the Foreign Agents Registration Act of 1938.
^See, e.g., 18 U.S.C. § 951; Public Law 893, 50 U.S.C. §§ 851-857; and 18 U.S.C. § 2386.
^James Shanahan, Propaganda without propagandists?: six case studies in U.S. propaganda, Hampton Press, 2001, p 108: "The DOJ's search for those who fail to disclose accurately their relationship with foreign groups and enforcement of FARA is selective."
^Yuk K. Law, "The Foreign Agents Registration Act: A new Standard for Determining Agency", pp. 373, 379, 380.