Image via Wikimedia Commons.

Update: On June 8, the Department of Justice made a significant step towards greater transparency when it released 53 advisory opinions on FARA, providing unprecedented guidance about which kinds of activities and relationships would require individuals to register as foreign agents. This move partially lifts the longstanding veil of secrecy around the FARA division. At least two of those opinions touched on journalism-related activity, and may shine light on some of the issues discussed in the piece below. In one opinion, the DOJ explains that a person who hosts a TV-show broadcast by a US-company that’s registered as a foreign agent need not register themselves, because their primary employer is the US-company, not the foreign entity. Although the names of the entities are redacted, the fact pattern resembles the dilemma that some employees of RT are now facing. In another opinion, the DOJ defines the act of writing articles for a US audience as a “political activity,” potentially opening the door for registering some individual journalist as agents. The opinions are highly case specific and neither one makes it clear how the unit will treat journalists going forward.

In a rare show of bipartisan unity, three Democratic congressmen joined with 16 GOP lawmakers to make an unusual request of the Department of Justice in March. Al Jazeera, the international media organization funded by the government of Qatar, the lawmakers wrote, had a troubling record of “anti-American” coverage. They asked the DOJ to investigate whether the network was in fact operating as “foreign agent” of the Qatari government.

“American citizens deserve to know whether the information and news media they consume is impartial, or if it is deceptive propaganda pushed by foreign nations,” they wrote. The DOJ, the bipartisan group suggested, should consider using the Foreign Agent Registration Act (FARA) to investigate the network. When entities are registered under FARA, their funding is disclosed to the public and they must submit detailed logs of their activities every six months.

RELATED: Propaganda or not, forcing RT to register sets a bad precedent

The prospect of being labeled foreign agents cast a shadow over Al Jazeera’s newsrooms. Although the network has a controversial history—from its early decisions to air Osama bin Laden interviews to its close relationship with the Qatari state—it is one of the most important sources of news in the Middle East. (Disclosure: One of Al Jazeera’s program hosts, Mhamed Krichen, is a member of the board of directors of the authors’ organization, Committee to Protect Journalists.) Its English-language branch has racked up reporting accolades, including eight Peabody Awards and a Polk Award. But reporters working for Al Jazeera tell us that they may be forced to quit. “I’m not a foreign agent, I’m a journalist,” one staffer, who requested anonymity because they were not authorized to speak publicly, says. “So I can’t say I’m something I’m not.”

Al Jazeera is not alone. Late last year, the Department of Justice demanded that two Russian-backed television outlets, the television network RT and the the radio station Sputnik, register. Earlier this year, members of Congress fired off a letter to the DOJ, asking them to look into the Chinese outlet CCTV. Late last month, Senator Marco Rubio tweeted that a partnership between Politico and the South Morning China Post should possibly be registered under FARA. At least four bills currently in Congress would strengthen FARA. Many investigative journalists digging into stories about lobbyists rely on FARA as an essential tool and want stronger enforcement, but these powers could raise serious concerns if applied to the media itself.

The recent move to enforce FARA against media outlets deeply troubling. FARA is one of the main tools the government uses to combat foreign influence, and in its 80-year history, it has been used to prosecute journalists and activists. In invoking FARA, Congress is relying on a notoriously opaque unit within the Department of Justice to draw an impossible line between propaganda and journalism. Source protection, media access, and the US promotion of press freedom abroad may all be compromised.

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Other bills envision somewhat gentler ways to capture the funding of foreign media. A modified version of one of these bills, which made its way into the National Defense Authorization Act late last month, would require some foreign-funded media outlets to register their funding and leadership structure with the FCC. Critics worry, however, that this bill does little to solve the concerns about FARA registration, and, could in fact, send the opposite message and contribute to ramped up enforcement from the DOJ.

For decades, FARA was little known and spottily enforced. It was originally designed to go after Nazi propagandists drumming up support for Hitler in the US. In the 1960s, motivated by concerns over the influence of foreign sugar producers, Congress amended the law to force foreign-backed lobbyists to register as well. It has also been routinely abused for political purposes. In 1951, for example, in the middle of the Red Scare, amid mounting pressure from politicians, the DOJ used FARA to bring criminal charges against the pathbreaking sociology and political activist W.E.B. Du Bois. They claimed his anti-war and anti-nuclear activism made him an agent of the Soviets.

Now, a large segment of the American political class worries that Russian media operatives have been manipulating the electorate. And FARA is being reimagined, with potentially dangerous consequences.

The focus on state-funded media kicked off a little over a year ago, after the Office of the Director of National Intelligence released a report on Russian Activities during the 2016 campaign. Over half of the 14-page report was dedicated to an analysis of RT’s broadcasts, a network that according to some estimates barely reaches 30,000 viewers. When DOJ forced RT to register as a foreign agent late last year, few protested, perhaps because the network has been so often accused—not without merit—of acting as an arm of the Russian State. Former employees and media critics describe a company that toes the Russian government line, gives a platform to conspiracy theories, and is part of a broader campaign by the Russian government to sow division and mistrust in democracies.

Nick Robinson, the legal director of the International Center for Not-for-Profit Law (ICNL), is highly concerned about the trend. He told us in late January that he could envision what he called a “nightmare scenario,” where government officials in the US were unhappy with a specific piece of journalism produced by an international outlet and tried to wield FARA to seek retribution. Then it happened. In the bipartisan letter requesting an investigation into Al Jazeera, the lawmakers cite reports that Al Jazeera had “infiltrated” American nonprofit organizations. In doing so, they appeared to point to an undercover documentary project on Israeli lobbying in the US, modeled off a similar project released last year in the UK. The documentary still has not aired.

Mostefa Souag, the Director General for Al Jazeera, tells us registering is not an option for the network. “This is not acceptable to us,” he says. To suggest Al Jazeera is a foreign agent of the Qatari government, he says, is “nonsense,” adding: “People who say such things—I don’t think they watch Al Jazeera.”

Clayton Swisher, who headed up Al Jazeera’s investigative unit, which led the project, raised concerns in an op-ed in The Forward that pressure on the Qatari government was leading to “unexpected delays” in airing the report. “If the documentary doesn’t air soon, it might prove to be the ammunition sought by a group of zealous US politicians who wish to declare Al Jazeera a foreign entity,” he wrote.

Back when FARA was first enacted in 1938, it was envisioned as a transparency initiative, and was the least punitive option for going after foreign influence. In the decades before, President Woodrow Wilson had warned that foreign influence had corrupted the “very arteries of our national life,” and authorities wielded World War I–era sedition laws to persecute and jail those thought to be disloyal.

FARA was, in a sense, a liberal response to the excesses of the previous decade, when dissent was not tolerated, and even a presidential candidate, Eugene Debs, was jailed for sedition. “The marketplace of ideas was important to the American liberal idea, and after World War One [liberals in the DOJ] were committed to not having that same extensive crackdown on speech,” historian Brett Gary tells CPJ. In his book, Nervous Liberals, he documented how early WWII-era lawmakers who passed FARA hoped that the label itself would be enough to discourage noxious propaganda. If not, FARA also allowed the Justice Department to prosecute those who failed to register.

To this day, FARA does not require its subjects to stop producing work. It forces agents to pay a fee, disclose their funding sources to the DOJ, and file periodic public disclosures about their activities.

Shortly after it was adopted, however, FARA prosecutions took a decidedly illiberal turn. During the Cold War, the government used cases against those who refused to register under FARA to test out new legal theories that muddled the line between dissent, propaganda, and sedition. Indeed, Gary argues that the DOJ quickly abandoned its commitment to free-speech, and adopted the ideas of Harold Lasswell, a political scientist and propaganda alarmist, who worked with the DOJ to convince judges that he’d developed a scientific method for discerning whether a piece of writing was propaganda or not. He reportedly even tried to get the Chicago Tribune labeled a sedition newspaper, because, according to his analysis, its criticism of FDR matched up with Nazi talking points.

“There was a slippage between parallel propaganda lines and active conspiracy. The language itself became proof of conspiracy without actually having to demonstrate conspiracy,” Gary tells CPJ. FARA has always been a transparency tool, but one intended, since its inception, to have a deterrent effect. “Registering is not neutral. The idea of foreign agency is not a neutral idea. If it were a neutral idea, then the BBC registering would be fine,” historian Brett Gary tells CPJ. In other words, if FARA were merely a transparency tool applied evenly to everyone, it might not carry nearly the stigma or punitive effect that it currently holds.

Indeed, RT is already feeling those consequences. In November, after the broadcaster for RT America registered, the executive committee of the Congressional Radio and Television Correspondents’ Galleries—a group of journalists empowered by the House of Representatives to manage press access to Congressional areas—voted unanimously to revoke RT America’s press credentials. Anna Belkina, the head of communications at RT in Moscow, tells CPJ that the loss of accreditation has cut journalists off not only from Congress, but from White House briefings, political events, and a range of government facilities.

“If partners view association with a Foreign Agent as a liability and change their terms of service accordingly, then the spirit of the FARA law is discriminatory even if the letter of that law technically isn’t,” Belkina wrote.

A sort of panic has set in among reporters working for foreign-funded outlets, CPJ is told, especially at outlets who worry they could anger US lawmakers or the Trump administration. “That’s the problem with FARA—you can be accused of politically motivated enforcement,” Robinson, the lawyer said. “It’s so sweeping and vague, the question will always be: why are you ramping up enforcement here, but not here?”

In fact, the FARA unit openly recognizes that it bases its requests on media reports and public outcry. The understaffed enforcement agency relies on voluntary compliance, and usually proactively pushes entities to register only after they see a registration gap in media reports or receive a request from lawmakers, experts tell CPJ, meaning that the most politically charged cases are the ones that end up being registered. Because enforcement has been so spotty, it’s hard to tell whether the recent furor around registering media outlets represents a return to FARA’s propaganda fighting roots, or if it is merely the reaction to public outcry around Russian propaganda.

As it’s written, anyone can be subject to FARA who is engaged in “political” activities on “behalf of” a foreign entity, or who serves as a “public relations counsel” or “information services employee” “for or in the interests of” a foreign principal. “Political activities” itself is broadly defined as any activity intended to influence any agency, official, or “section of the public” regarding policies, or even “public interests.” Experts tell CPJ that the broad definitions in law could potentially capture a range of journalistic activities. In its letter to RT America, the DOJ cites multiple reasons for RT to apply—specifically calling out the network’s criticism of NATO and US foreign policy towards Iran and its skepticism towards the April 2017 Syrian gas attack. Other reasons, however, relate to RT America’s ownership structure, regardless of any “editorial latitude.” Although there’s an exception written into the law for media outlets, it only applies if 80 percent of the ownership is American citizens—a bar that few outlets with foreign-backing could meet.

“The statute is so broadly worded, you can capture a lot of activities,” says Brian Smith, a lawyer who does FARA compliance work at Covington & Burling. Indeed, FARA experts worry that, the way the law is written, it doesn’t draw clear distinctions that set apart the BBCs of the world from outlets that overtly mix propaganda and journalism.

At its most benign, FARA enforcement against media entities is a simple transparency program. Those deemed to be foreign agents submit their names to the DOJ for public review, and their employers disclose their funding sources. But FARA can go much further. Foreign agents are required to disclose the activities they engage in on behalf of their foreign principles—that includes points of contact with government officials, think tanks, and other media organizations. Such information is clearly in the public interest when, say, the Egyptian government hires a PR firm to ensure a weapons purchase. If the firm is in touch with a particular congressman, that information is of public concern, and making it public is hard to object to. But for a journalist, such disclosures could be devastating—exposing sources, reporting methods, and rendering their job to be, essentially, impossible.

There’s little precedent to call upon. So far, only a few media outlets are registered: China Daily, the Korean broadcaster KBS America, and the Japanese broadcaster NHK Cosmomedia. These outlets don’t appear to be registering individual journalists. But the real test will come when RT files its supplemental paperwork, since this is the only recent case that CPJ knows of where the DOJ has proactively targeted a media company for registration. As of the time of this writing, the filing was not on the FARA website.

So, is FARA a deathblow to any media outlet forced to register? It’s hard to say, because the FARA unit is notoriously opaque. It wouldn’t provide an official to discuss this issue with CPJ. While it regularly furnished advisory opinions to potential registrants, only three cases—none related to media outlets—have been published on the site. “There’s irony that this transparency unit is being so woefully untransparent,” said Ben Freeman, the Director and founder of the Foreign Influence Transparency Initiative at the Center for International Policy. “If the DOJ wanted to, they could make their advisory opinions public.”

As it stands, the specifics of how media outlets might be brought into compliance—and whether individual journalists might be forced to register—is in the hands of Trump’s Justice department. One piece of legislation, introduced by Senator Chuck Grassley to strengthen FARA, would also allow the DOJ to demand the production of documents and testimony without a warrant as part of its process of determining whether an entity should register. This could endanger journalists’ sources.

Meanwhile, many open-government groups have embraced the proposed legislation, because it would also bring corporate lobbyists under FARA and put some teeth in the transparency office. A few civil liberties organizations have raised concerns about privacy, and the so-called civil investigative demand authority. Grassley’s office tells CPJ that the bill has been in the works since before the election. His bill is one of at least four in Congress that would strengthen FARA enforcement. Another two bills would amend the Communications Act to require foreign state-funded media to disclose their ownership to the FCC, and to the public during broadcasts.

The FARA issue is an awkward one for a press freedom organization like CPJ. Even as the law poses a threat to reporters, the statute has been an incredible resource for reporters themselves. A quick glance at the agency’s website reveals a wealth of information in the public interest, such as funding sources. And big stories can hinge on FARA disclosures. It was FARA documents that provided The New York Times with proof that the Taiwanese government paid former GOP presidential candidate Bob Dole to lobby President Trump to call the president of Taiwan, contradicting years of precedent.

Daniel Schuman, a transparency advocate, and the policy director of the progressive grassroots group Demand Progress, says that vigorous FARA enforcement is especially important now, “in the milieu in which foreign governments are trying to influence our election—and have succeeded in doing so.”

Even some human rights advocates are in favor of registering media under FARA. Sarah Cook, a Senior Research Analyst at Freedom House, has rigorously tracked the long arm of Chinese Communist Party censorship—from cyberattacks and blocked websites to Apple’s decision to remove the New York Times mobile app from its download store in China—and she links this with the growing expansion of Chinese state-funded propaganda in the United States. Last May, long before the Russia story brought FARA into the open, Cook testified in Congress and called for registration of Chinese state media.

“If you have a law that’s supposed to be enforced, then it should be enforced,” she tells CPJ. “I think there’s a reason why these outlets are trying to hide [their funding], and when readers know that information, it does affect their perception.”

But should reporters in a newsroom—even a newsroom that tilts in favor of a foreign government—be subjected to the same regulation as a lobbying firm that’s taking $25,000 a month to pitch congressmen on arms deals benefiting their foreign benefactors? Even RT won an Emmy for gritty on-the-ground coverage of the Occupy Wall Street movement. The energetic embrace of FARA for media outlets looks a lot like scapegoating: Foreign media organizations are being blamed—and punished through FARA—in a climate where there’s a hunger to pin our political woes on foreigners. While fear over foreign influence is understandable, reporters who draw a paycheck from a foreign-backed outlet are the wrong target.

An added irony is that it inspires the tactics of the very foreign powers the US is hoping to resist. According to the International Center for Not-for-Profit Law, Russia, Hungary, Ukraine, and Israel all cited FARA in passing legislation requiring foreign civil society organizations to register with the government.

When Russia passed its own version of the foreign agent registration law in 2012, Putin said that he was merely mimicking US FARA. A number of liberal commentators cried foul. They pointed out that FARA in the US is used to register lobbyists, not civil society or journalists. Maria Lipman, editor-in-chief of the Moscow-based journal Counterpoint, was one such critic who argued this interpretation. “The US registration of RT as a foreign agent proves wrong those arguments we made in 2012,” she told us in September. Russia has since responded to the registration of RT by labeling nine US news outlets as foreign agents.

Update: This piece has been updated to disclose that one of Al Jazeera’s program hosts, Mhamed Krichen, is a member of the board of directors of the Committee to Protect Journalists.

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Alexandra Ellerbeck and Avi Asher-Schapiro are the authors. Alexandra Ellerbeck is the North America program coordinator at the Committee to Protect Journalists. She previously worked at Freedom House on its Freedom on the Net publication. Avi Asher-Schapiro is CPJ's U.S. correspondent. Avi is a former staffer at VICE News, International Business Times, and Tribune Media, and an independent investigate reporter who has published in outlets including The Atlantic, The Intercept, and The New York Times.