After decades of criticism and inaction, the Foreign Agents Registration Act (FARA) is finally being updated to keep pace with present-day challenges, including an administration with numerous ties to foreign agents.

The recent momentum is driven in large part by the fact that multiple Trump administration officials — including former Trump campaign chair Paul Manafort and national security adviser Mike Flynn — have been accused of breaching FARA regulations and secretly working on behalf of foreign governments.

As a result, FARA registrations have risen considerably over the past year, with one estimate finding a 50 percent jump in 2017. The Justice Department even obtained a recent guilty plea for FARA-related infractions from a man who worked on behalf of Pakistan — a notable development given that there had only been a handful of FARA-related criminal prosecutions since 1966.

Despite the surge in registrations, however, numerous issues have swamped FARA — including clarity on exactly who is required to register. As testimony submitted to the Senate from pro-transparency activists last month read, questions about registration and FARA’s historic lack of enforcement have resulted in “the public and even Congress [being] left in the dark about how our laws are shaped and influenced.”


The calls for further FARA-related transparency appear to have worked. Late last week, DOJ released new guidelines and advisory opinions delineating who — like Manafort and Flynn — should register with FARA, and who is eligible for legal or media exemptions.

“To enhance compliance, we are making these advisory opinions available publicly and online for the first time,” John Demers, assistant attorney general for national security, said. “By posting these advisory opinions, the Department of Justice is making clearer how we interpret some of FARA’s key provisions.”

The advisories make for fascinating reading, even though the individuals, organizations, and countries in question are redacted. Law firms working on behalf of clients who may be facing sanctions, for instance, are still eligible for FARA exemptions, and don’t need to register. However, a U.S.-based foundation that “disburses… money, or other things of value” on behalf of a foreign government must register — especially if that foundation “takes direction from a ministry” of a foreign government.

Agents of the media

The most intriguing and timely aspect of the releases doesn’t pertain to foundations or law firms, but to media. Outside of the Trump administration, the most significant FARA-related development of the past year has focused on whether outlets run by foreign governments — especially those funded by the Russian government — should register with FARA. (FARA registration requires routine submission of documents to DOJ, detailing payments and activities on behalf of foreign principals.)


RT and Sputnik have both now registered with FARA, following precedent set by other outlets from China, Japan, and South Korea. But the registrations were relatively bare, offering little detail regarding what activities the companies pursue on behalf of their Russian benefactors. The RT registration, for instance, was largely limited to defining the relationship that Washington-based RIA Global LLC — the American arm of RT — has with RT’s parent organization in Russia.

However, we now know why RT and Sputnik weren’t required to go into detail about their television and radio hosts and employees as part of their filings. In April, a few months after RT and Sputnik registered, FARA registration unit chief Heather Hunt issued an advisory opinion delineating why employees of these outlets — or those who have direct relations with the American-based branch of the outlets, at least — wouldn’t need to register.

View this document on Scribd

As Hunt wrote, explaining both the situation and the requirements:

The consideration most relevant to our determination that [US person] does not have an obligation to register is, as you have pointed out, that [US person] does not have a contractual relationship with [foreign state owned company] or other foreign principal. [US person]’s contractual relationship is with [US company], a FARA-registered U.S. entity. Therefore, it cannot be said the [US person] is an “agent of a foreign principal” who is acting “at the order, request, or under the direction or control of a foreign principal.” Accordingly, we have determined that [US person] does not have an obligation to register under FARA because of his contract with [US company].

Cutting out the jargon, Hunt appears to be telling the redacted questioner that as long as the American hosts are contractually working with an American company — even if that American company is already registered with FARA — they are not working for a “foreign principal,” and are thus under no obligation to register.

I fail to grasp how this is any different than an individual working for a US-based firm that works on behalf of a foreign government. Both are foreign agents. We need to reform how these regulations are implemented. https://t.co/iOBc9wGEwh — Nina Jankowicz (@wiczipedia) June 11, 2018

The opinion would appear to present a handy workaround for any future foreign media operations forced to register with FARA: As long as they set up an American company, and allow employees to contract with that company, they can skirt the spirit of FARA regulations wholesale. In so doing, they effectively undercut the purpose of FARA — that is, sharing with the broader public what employees are doing on behalf of a foreign principal. A handy middleman can still prevent FARA from being as effective as it should.


Of course, FARA still has a raft of other issues to tackle. After all, the database remains weighed down by pointless material, such as filings related to the made-up “United Kingdom of Coralland.”

So FARA has a completely made-up country – "United Kingdom of Coralland" – in its database. pic.twitter.com/MbEW5jn5SY — Casey Michel (@cjcmichel) October 8, 2017

But even if the new guidelines raise additional questions, they’re at least indicative of a new momentum behind the effort to update and clarify FARA.

The database, the DOJ’s enforcement team, and the information about required registration still require significant attention — but thanks to both Russia and Trump alike, FARA is at least experiencing a long-overdue resurgence in relevancy and attention. In the process, they’re helping clean up a mess decades in the making. And they’re potentially preventing future political campaigns, and future presidents, from hiring individuals who are secretly working for foreign governments.