Congress enacted the Foreign Agents Registration Act (FARA) in 1938 to control Nazi propaganda. This law requires a U.S. entity to register with the Department of Justice (DOJ) within 10 days of agreeing to represent a foreign principal and before performing any of the activities listed below. Once registered, the organization must file periodic reports, include disclaimers in public communications it distributes for the foreign principal, and file copies of these communications with the DOJ within 48 hours of dissemination. Most commonly, these requirements fall on lobbying firms, PR consultants, and U.S. subsidiaries of foreign companies. Three exemptions may waive the registration and disclosure requirements, the “Lobbying Disclosure Act (LDA) Exemption,” the “Commercial Activity Exemption,” and the “Legal Representation Exemption.” FARA compliance is a DOJ enforcement priority. Violations may result in significant fines and even jail time. In early 2019, the DOJ announced
that it will “crackdown on illegal foreign influence operations,” targeting violations of FARA as a new priority.
RELATIONSHIP AND ACTIVITIES
A U.S. entity will trigger FARA registration and disclosure requirements if its relationship with the foreign principal and its activities meet the qualifications of acting as an “agent of a foreign principal”:
A “foreign principal
” is a foreign government or political party; an entity that is organized under the laws of another country or has its principal place of business outside of the U.S.; or an individual who is neither a U.S. citizen nor domiciled within the U.S.
An “agent of a foreign principal
” is any individual, partner- ship, association, corporation, organization or combination of individuals that acts at the order, request, or under the direction or control of a foreign principal and engages in any amount of the following activities for the foreign principal:
Attempting to influence an official or agency of the U.S. Government or any section of the U.S. public regarding U.S. foreign or domestic policy, or with reference to the political or public interests, policies or relations of a foreign government or political party;
Public Relations Counsel
Advising on any public relations matter pertaining to the foreign principal’s political or public interests, policies, or relations;
Producing or disseminating oral, visual, graphic, written, or pictorial materials such as press releases, op-eds, lectures, advertisements, books, movies, or in any other medium;
Information Services Employee
Producing or distributing information about a foreign country, political party, or private organization’s political, industrial, economic, economic cultural, or other facts; or
Informing or advising the foreign principal regarding U.S. Government domestic or foreign policies, or the public interest, policies, or relations of a foreign country or political party.
The FARA registration and disclosure requirements do not apply to a U.S. entity that meets either of the following exemptions, even if it otherwise meets the “agent of a foreign principal” criteria:
(1) The foreign principal is a private sector entity, not a foreign government or political party; (2) the U.S. entity engages in some LDA-defined “lobbying activities” for the foreign principal; and (3) the U.S. entity registers under the LDA in connection with its representation of the foreign principal.
Commercial Activity Exemption
The U.S. entity engages in only private and nonpolitical activities in further-ance of the foreign principal’s bona fide trade or commerce.
Licensed attorneys' advocacy in federal judicial proceedings; criminal or civil law enforcement investigations or proceedings; or on-the-record agency proceedings required by law or regulation.