The Foreign Agents Registration Act (22 U.S.C. § 611 et seq., "FARA" or the "Act") requires persons and entities in the United States to register with the Department of Justice's ("DOJ") FARA Registration Unit when they engage in certain political or quasi-political activities in the U.S. on behalf of "foreign principals." FARA requires all persons representing foreign principals to register with the DOJ and provide certain information about the relationship with the foreign principal, the scope of work, and, on a semi-annual basis, the activities performed on behalf of the foreign principal. A registrant's individual employees, officers, etc., who will engage in registrable activities on behalf of the foreign principal must file individual filings (called "short forms"). The willful failure to comply with FARA's requirements may result in a fine of not more than $10,000 or imprisonment for not more than five years.
Who Must Register?
FARA's registration requirements apply to (1) "foreign agents" (2) engaged in registrable activities (3) on behalf of "foreign principals." The term "foreign principal" refers to any foreign government, political entity, or non-U.S. citizen located outside of the U.S., or any entity organized under the laws of, or having its principal place of business in, a foreign country. The term "foreign agent" applies to any person who acts at the order, request, or control of a foreign principal or of an intermediary person whose activities are directly or indirectly controlled by a foreign principal, and who engages in any of the following registrable activities:
- Political Activity: Any activity that the person engaging in it believes will, or that the person intends to, influence any agency or official of the U.S. government or any section of the public within the U.S. with reference to formulating, adopting, or changing the domestic or foreign policies of the U.S. or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.
- Public Relations Counsel: Informing, advising, or in any way representing a principal in any public relations matter pertaining to political or public interests, policies, or relations of such principal.
- Political Consulting: Informing or advising any other person with reference to the domestic or foreign policies of the U.S. or the political or public interest, policies, or relations of a foreign country or of a foreign political party.
- Publicity Activities: Directly or indirectly publishing or disseminating oral, visual, graphic, written, or pictorial information or matter of any kind, including by advertising books, periodicals, newspapers, lectures, broadcasts, motion pictures or otherwise.
Information-service Employee: Furnishing, disseminating, or publishing accounts, descriptions, information, or data with respect to the political, industrial, employment, economic, social, cultural, or other benefits, advantages, facts, or conditions of any country other than the United States or of any government of a foreign country or of a foreign political party or of a partnership, association, corporation, organization, or other combination of individuals organized under the laws of, or having its principal place of business in, a foreign country.
When Are Activities Subject to Registration?
Notwithstanding FARA's broad scope, many practitioners interpret FARA as requiring registration only when a person or entity engages in registrable activities on behalf of a foreign principal that are intended to influence the formulation, adoption, or changing of U.S. domestic or foreign policy. In this regard, DOJ's implementing regulations narrow the statute's definition of "political activities" by excluding information-gathering activities, such as the "making [of a] routine inquiry of a Government official or employee concerning a current policy or seeking administrative action in a matter where such policy is not in question." Similarly, the implementing regulations explain that an "employee or agent of a registrant whose services in furtherance of the interests of the foreign principal are rendered in a clerical, secretarial, or in a related or similar capacity, is not required to file a short form registration statement."
Unfortunately, neither the statute nor the implementing regulations clarify the scope of these limitations or define the terms "clerical", and "secretarial," or those activities that are "related or similar in capacity." A reasonable interpretation of the terms, however, would exempt most non-substantive office work from the statute, including handling correspondence, recording information, filing and organizing information, and communicating within the general business environment.
FARA contains several exemptions that limit the scope of its registration requirements, the most important of which are for (1) persons engaging only in private and nonpolitical activities in furtherance of a foreign principal's trade or commerce; (2) persons engaged in activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts; (3) lawyers representing a disclosed foreign principal before any court of law or any agency of the U.S. Government; and (4) any foreign agent that has previously registered under the Lobbying Disclosure Act ("LDA"), except for those representing foreign governments and foreign political parties.
The last exemption is important, because it allows agents to register and report under the LDA rather than FARA when representing foreign entities other than governments and political parties. The LDA is a much less burdensome statute with simpler reporting obligations.
Registering and Reporting Procedures under FARA
To register under FARA, a foreign agent must file three forms: (1) a Registration Statement for the foreign agent; (2) Exhibits A and B to the registration statement, which set forth background information on the foreign principal and the contractual relationship with the foreign principal; and (3) individual filings (called "short forms") for each individual who will engage in registrable activities on behalf of the foreign principal (i.e., officers, employees, etc.). Once registered, on a semi-annual basis, the registrant must report the activities performed on behalf of the foreign principal and funds received from, or disbursed on behalf of, the foreign principal, including political contributions made by each short-form registrant.
In addition, FARA requires registrants to file with the Registration Unit, within forty-eight hours, two copies of any informational materials disseminated on behalf of the foreign principal to two or more persons. All informational materials must contain a "conspicuous statement" on the cover identifying the name of the registrant and the name of the foreign principal, and advising that the recipient may obtain information about the registrant through the Registration Unit. Finally, any informational material given to a Member of Congress or a U.S. government official must include a statement that the person distributing the materials is a registered agent of a foreign principal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.