The Foreign Agents Registration Act (FARA), 22 U.S.C. § 611 et seq., is a federal statute passed in 1938 that was originally intended to combat the dissemination of Nazi and Communist propaganda within the United States. FARA broadly requires certain individuals and entities within the United States to register and periodically report to the Department of Justice (DOJ) as an agent of a “foreign principal.” Such individuals and entities must disclose their status as an agent of a foreign principal on any informational materials that they disseminate within the United States and transmit copies of such materials to the DOJ.

Congress has stated that FARA’s purpose is to:

to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in the light of their associations and activities.[1]

FARA defines a “foreign principal” as a foreign government or political party, any person outside the United States (except U.S. citizens who are domiciled within the United States), or any entity organized under the laws of a foreign country or having its principal place of business in a foreign country.[2]

The definition of a “foreign principal” is broad. It includes not only foreign governments and political parties, but also corporations, partnerships, associations, foundations, and other organizations that either are not organized under the laws of the United States or that do not have their principal place of business within the United States. For example, a foreign parent company of a U.S. subsidiary would be a foreign principal under FARA. Even a U.S. citizen outside the United States who is domiciled abroad would be a foreign principal under this definition.

What is an Agent of Foreign Principal?

An “agent of a foreign principal” is any person:

• who acts (or agrees to act or holds themselves out as acting) in any capacity at the order or request or under the direction or control, of:
  • a foreign principal or
  • 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, and
• who directly or through any other person engages in certain activities (listed below).[3]

However, an “agent of a foreign principal” does not include any certain entities engaged in journalistic activities that are organized under the laws of the United States or any location subject to the jurisdiction of the United States or that are owned and controlled by U.S. citizens.[4]

As with the definition of a “foreign principal,” it is important to note how broad the definition of an “agent of foreign principal” is. The term may include persons who do not explicitly agree to act as an agent of a foreign principal as well as those who may not even know of the existence of a foreign principal because they are acting at the behest of an intermediary whose relationship with the foreign principal is hidden.

What Activities Trigger FARA?

Activities that trigger FARA include:

• engaging in political activities in the United States for or in the interests of a foreign principal;
• working as a foreign relations counsel or consultant in the United States for or in the interests of a foreign principal;
• collecting or dispensing things of value within the United States for or in the interests of a foreign principal; and
• representing the interests of a foreign principal in the United States before an agency or official of the U.S. government.[5]

What Activities Are Exempt Under FARA?

Certain activities involving a U.S. individual or entity for or in the interests of a foreign principal are exempt from FARA. Examples include:

• private and non-political activities promoting legitimate trade or commerce;
• legal representation of a disclosed foreign principal before a court or agency of the U.S. government in the course of judicial proceedings, criminal or civil law enforcement inquiries, investigations, or proceedings, or agency proceedings required by statute or regulation to be conducted on the record;
• bona fide (non-political) religious, scholastic, academic, or scientific pursuits or of the fine arts; and
• the activities of lobbyists who can register alternatively under the Lobbying Disclosure Act.[6]

When Must an Agent of a Foreign Principal Register Under FARA?

Any individual or entity that qualifies as an agent of a foreign principal under FARA must file a true and complete registration statement in duplicate and under oath with the DOJ and pay a fee within 10 days of first acting as an agent of the foreign principal.[7] This registration must disclose the identity of the agent and the foreign principal, describe the work that will be performed by the agent, and include a copy of the contract or agreement between the agent and the foreign principal.

Then, every 6 months after registering with the DOJ, the agent must file an additional statement regarding the work performed during that six-month period and the amount of compensation they received in exchange for that work.[8]

What are the Obligations of an Agent of a Foreign Principal Regarding Informational Materials?

An agent of a foreign principal also must disclose their status as such via a conspicuous statement at the beginning of any informational material that they disseminate in the United States.[9] The agent must send two copies of this material to the DOJ within 48 hours of dissemination.[10]

What are the Potential Penalties for Violating FARA?

The potential penalties for willfully failing to register as an agent of a foreign principal, or willfully submitting false statements to the DOJ with regard to registration as an agent of a foreign principal, include up to five years in prison and/or a fine of up to $250,000.[11] In addition, the DOJ may bar the violator from acting or continuing to act on behalf of a foreign principal and deport any aliens so acting from the United States.[12]

Consult With an Experienced Attorney

Persons undertaking activities that are for or in the interests of a foreign principal may be subject to FARA and should consult with experienced counsel to ensure that they meet their obligations with regard to FARA registration and reporting.

[1] Act of June 8, 1938, ch. 327, as added by Act of Apr. 29, 1942, ch. 263, §1, 56 Stat. 248.

[2] 22 U.S.C. § 611(b).

[3] 22 U.S.C. § 611(c).

[4] 22 U.S.C. § 611(d).

[5] 22 U.S.C. § 611(c)(1).

[6] 22 U.S.C. § 613.

[7] See 22 U.S.C. § 612(a); 28 C.F.R. § 5.5(a), (d)(1).

[8] See 22 U.S.C. § 612(b).

[9] 22 U.S.C. § 614(b); 28 C.F.R. § 5.402.

[10] 22 U.S.C. § 614(c).

[11] See 18 U.S.C. § 3571(b)(3); 22 U.S.C. § 618(a).

[12] 22 U.S.C. § 618(c), (f).

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