The Foreign Agent Registration Act (FARA) is a federal statute which has of late seen enhanced enforcement efforts from the Department of Justice. In this article, we examine the FARA statutory scheme and discuss some of its practical applications.
Overview of the Foreign Agent Registration Act and Its Criminal Provisions
The Foreign Agent Registration Act is a law passed by Congress designed to assist the government and American people in monitoring the activities of persons in the United States acting on behalf of foreign entities. It requires such persons to file registration statements, periodic reports and other documents with the government.
Violation of FARA can carry criminal penalties. Under 18 U.S.C. § 618 violation of FARA can be either a felony carrying up to five years in prison or a misdemeanor carrying up to six months, depending on which particular provision of FARA is violated. Violation of the act can also result in civil penalties or, in the case of non-citizens, deportation from the United States.
Who is Covered by FARA’s Registration Requirements?
The FARA registration requirements apply to persons acting as “agents[s] of a foreign principal.” What does this phrase mean exactly?
22 U.S.C. § 611 sets for the definition of foreign principal and agent. Importantly a “foreign principal” does not have to be a governmental entity. The definition also includes individuals, political parties, businesses or other organizations.
The statute defines “agent of a foreign principal” as “any person who acts as an agent, representative, employee, or servant, or any person 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 subsidized 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 interests 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.”
Alternatively, an agent of a foreign principal could also be “any person 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.”
What are FARA’s Registration Requirements?
Those covered by FARA under the above definitions are required to file a registration statement with the Attorney General followed by periodic reports about the agent’s activities.
22 U.S.C. § 612. states that every person who becomes an agent of a foreign principal shall register within 10 days. The registration must be under oath using a form prescribed by the Attorney General.
The registration statement is required to include extensive information on the agent. It must include: 1) the resident’s name and address, 2) information on nationality if the agent is a person or legal structure if it is an organization, 3) extensive information on the nature of the registrant’s business including a list of all employees, 4) information on the nature of the registrant’s relationship to the foreign principal, 5) money and other things of value received by the agent from the foreign principal in the past sixty days, 6) other activities which would require registration, 7) other persons for whom the registrant has agreed to act as an agent, 8) information on expenditures for the past sixty days, 9) other written agreements for work which requires registration, 10) any other information which the Attorney General might require, and 11) information necessary to prevent the foregoing information from being misleading.
The foregoing is merely a summary of the categories of information required. Those considering registration must read the lengthier explanations of required information in the statue itself.
As you can see, these extensive reporting requirements will be onerous indeed for many potential registrants. Moreover, many of the requirements are confusing or vague. How, for example, is one to know which additional documents are needed to prevent the specifically listed documents from being misleading? And, any potential mistake or omission in the registration may subject one to a criminal charge (although the mistake or omission must have been “willful”).
Periodic Reporting Requirements
After filing the initial registration statement, those covered by FARA must file periodic supplements.
22 U.S.C. 612 requires every agent of a foreign principal to file supplements within thirty days after the expiration of each six month period after registering. The supplement is to be on a form prescribed by the attorney general and includes such information as he deems necessary.
In addition to filing the supplements, those covered by FARA must advise the Attorney General of changes to certain information in the initial registration “within ten days after such changes occur.”
22 U.S.C. § 613 contains exemptions for FARA’s registration and reporting requirements for certain classes of persons who would otherwise meet the definition of agent of a foreign principal.
Exemptions are included for diplomatic or consular officers, officials of a foreign government, staff members of diplomatic or consular officers, private and nonpolitical activities, solicitation of funds for charitable purposes, religious scholastic or scientific pursuits, registered lobbyists and lawyers.
Those who believe they fall into one of these exemptions should examine the full definitions carefully before choosing not to register. In ambiguous cases, consult an attorney for advice as to whether one of these exemptions covers you.
Decline and Rebirth of FARA
The original version of the Act was passed in in 1938 and was directed principally at the threat from Communist agents and Nazi sympathizers. In later decades, the act fell into disuse and was largely forgotten by the law enforcement community. According to the Washington Post, there were only seven FARA cases between 1966 and 2015.
However, the past several years have seen a revival of FARA cases in federal law enforcement, largely due to Independent Counsel Robert Mueller’s aggressive use of the statute. In March of 2019, the Department of Justice announced it would step up it’s FARA enforcement. Individuals and businesses engaged in international activities can expect vigorous FARA enforcement for the foreseeable future.
The main takeaway from recent FARA developments is that individuals and businesses engaged in international activities need to take extra steps to ensure FARA compliance.
Our experienced FARA attorneys can help you decide whether there FARA requirements apply to you, and, if so, what steps are necessary to comply.
If you have further questions about how FARA might apply to your situation, please contact us.
Our Firm’s Unique FARA Experience
Our law firm’s experienced FARA attorneys are some of the only legal professionals in the world with FARA experience that predates the Robert Mueller era. In 2010 we negotiated a historically unique plea bargain for a Russian national charged with violations in highly publicized prosecution in the Southern District of New York.
As a result of our experience defending FARA charges, our lawyers have frequently been called upon to share our expertise, including recent appearances on BBC News and in CNN coverage.