The Foreign Agents Registration Act - (FARA) - Wiley Rein
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The Foreign Agents Registration Act (FARA) Handbook
The FARA Handbook
or whose principal place of business is in a
foreign country.
Further, the statute defines an “agent of a
foreign principal” to include any person (i.e.,
individual, partnership, association, corporation,
Introduction etc.) who has an agency relationship with the
foreign principal, and directly, or through any
This handbook provides a general overview of
other person, is engaged in one of four covered
the Foreign Agents Registration Act (FARA), the
activities in the United States. These activities
regulatory and statutory provisions that govern
are:
whether an entity must register with the U.S.
Department of Justice (DOJ), the registration (1) Engaging in political activities for or in
process, the obligations of registered agents, and the interests of such foreign principal;
the penalties that may be imposed for FARA (2) Acting as a public relations counsel,
violations publicity agent, information-service
employee, or political consultant for or
Overview in the interests of such foreign
principal;
Enacted in 1938 and administered by the FARA
Registration Unit of the Counterintelligence and (3) Soliciting, collecting, disbursing, or
Export Control Section (CES) in the National dispensing contributions, loans,
Security Division (NSD) of the DOJ, FARA is a money, or other things of value for or
disclosure statute that seeks to ensure that all in the interest of such foreign principal;
persons acting politically or quasi-politically on or
behalf of foreign entities in the United States (4) Representing the interests of such
properly disclose their activities to the United foreign principal before any agency or
States government. As a result, the statute official of the government of the
requires that all persons acting as an “agent of United States.
a foreign principal” register with the DOJ unless
“Political activities” are defined as “any activity
an exception applies. In general, all of the
that the person engaging in believes will, or that
information disclosed in FARA registration
the person intends to, in any way influence any
materials is made publicly available online.
agency or official of the government of the
United States or any section of the public within
Is There a Registration the United States with reference to formulating,
adopting, or changing the domestic or foreign
Requirement? policies of the United States or with reference to
Pursuant to the statute, any person who the political or public interests, policies, or
engages in certain political or quasi-political relations of a government of a foreign country or
activities on behalf of a foreign principal (i.e., an a foreign political party.” Notably, the definition
agent of a foreign principal) must register under of political activities is broad and could include a
FARA unless an exception applies. wide range of activities, such as lobbying U.S.
The statute broadly defines a “foreign principal” government officials; engaging in public relations
to include not only foreign governments and activities for the purpose of changing or
foreign political parties, but also persons and enhancing the U.S. public’s perception of a
organizations outside of the United States, and foreign government; or arranging meetings,
corporations and other entities that are planning itineraries, or supplying a forum for
organized under the laws of a foreign country, foreign officials to promote their programs.
2 ©2021 Wiley Rein LLPThe FARA Handbook
principal. This initial statement includes a variety
Does an Exemption to of information, such as: the registrant’s contact
information; the status of the registrant; the
Registration Apply? contract between agent and foreign principal or,
Even if an activity triggers a registration if no contract exists, a full statement indicating
requirement under the statute, an exemption may the circumstances by reason of which the
apply. Specifically, the statute provides registrant is an agent of a foreign principal; the
registration exemptions for the following nature and amount of contribution, income,
persons/reasons: money, or thing of value that the registrant has
received; a detailed statement of the activities
Diplomatic or consular officers
that the agent is performing in connection with
Officials of foreign governments its representation of the foreign principal; and a
Staff members of diplomatic or consular detailed statement of the money and other
officers things of value spent by the registrant in
Private and nonpolitical connection with his/her representation of the
activities/solicitation of funds foreign principal. A $305 filing fee per foreign
principal is required.
Religious, scholastic, or scientific pursuits
Supplemental Registration Statements
Defense of foreign government vital to U.S.
defense Every six months, registered agents must file a
supplemental registration statement with the
Persons qualified to practice law
DOJ. The supplemental registration statement
Agents registered under the Lobbying includes the following information: any changes
Disclosure Act, provided that the foreign in agent management, personnel, or termination
principal is not a foreign government or of representation; a description of any activities
foreign political party or services performed on behalf of the foreign
Importantly, the party claiming an exemption principal during the six-month reporting period;
from the registration requirement bears the any monies or things of value expended and
burden of demonstrating qualification for the received in connection with the representation;
exemption under these provisions. When in and information concerning any “informational
doubt as to the applicability of a given materials” disseminated. In addition, a $305 filing
exception, potential agents of a foreign principal fee per foreign principal is required.
may pursue a request for a formal advisory Short Forms
opinion.
Every partner, officer, director, associate,
employee, and agent of a registrant is required
What are the Registration to file a short form, unless: (1) the partner, officer,
director, associate, employee, or agent of the
Requirements Under FARA? registrant does not engage directly in
An agent of a foreign principal must file an initial registerable activity that is in furtherance of the
registration statement, short forms, and interests of the foreign principal, or (2) the
supplemental statements via FARA’s electronic employee or agent of a registrant whose
filing system. Pursuant to the statute, the agent activities further the interests of a foreign
must also properly label and file “informational principal are provided in a clerical, secretarial, or
materials” with the DOJ. similar capacity. No filing fee is required to file
Initial Registration short forms.
The initial registration statement must be
submitted to the DOJ within 10 days of when an
agent enters into an agreement with the foreign
3 ©2021 Wiley Rein LLPThe FARA Handbook
Labeling and Filing Requirements of eFile, new registrants must submit their
Informational Materials registration package by selecting “New
Registration” on the eFile website and then
Two copies of all “informational materials” that
uploading their documents to the system. The
are transmitted or caused to be transmitted to
DOJ will then review the submission and provide
two or more persons on behalf of or for the
an account number and password via mail.
benefit of the foreign principal must be filed with
Registrants must use their online user account
the DOJ within 48 hours of their distribution.
number and password to upload any subsequent
“Informational materials” include, but are not
documents.
limited to, the following: radio and television
broadcasts, advertising, magazine or The registration fee associated with the various
newspaper articles, motion picture films, FARA filings can be paid either online with a
pamphlets or other publications, letters or credit card or electronic funds transfer, or by
telegrams, and lectures or speeches. In addition, mail with a check. Once a document has been
all informational materials must contain a successfully submitted, the eFile system will
conspicuous statement that the materials are provide a confirmation with a transaction
distributed by the agent on behalf of the foreign number to track the submission.
principal, and that additional information is on New eFile System for Initial Registrants
file with the DOJ. The DOJ implemented a new online FARA eFile
Recordkeeping Requirements system in September 2019 for new FARA
Registered agents are required to maintain all registrants. This new system is a web-based
records related to the activities subject to format, which requires the online entry of
registration under the statute for up to three (3) information for most responses as opposed to
years after the termination of an agent’s PDF uploads of FARA registration forms (uploads
registration. The recordkeeping requirement are still permitted for certain supporting
covers: financial statements; correspondence documentation such as contracts between a
between relevant persons; memorandums; registrant and foreign principal). This new system
written communication; informational materials; allows for more standardized responses to
bank statements; records containing the names, questions and allows for inputted information to
titles, and contact information of individuals that be searchable on the DOJ’s online FARA
either provided services to the foreign principal database. While the information requested in the
or were contacted by the agent in relation to the new system largely tracks the information
foreign principal’s agenda; and any other requested in the old FARA registration forms (the
documents prepared for, distributed to promote, initial registration statement, Exhibit A, Exhibit B,
or containing information regarding the agent’s Exhibit C, and short form), there are slight
representation of the foreign principal. If the variations in certain questions, among other
registered agent is a corporation or other such differences.
entity, then it is also required to retain meeting Notably, while the old eFile system remains the
minutes. same for existing FARA registrants, the DOJ is
Upon request, these records must be made expected to transition all filings to the new
available for inspection by the NSD and the system in the near future.
Federal Bureau of Investigation (FBI).
Electronic Filing Requirement
The DOJ requires that all registration statements
and informational materials be submitted
electronically using the agency’s eFile system. In
order to file documents electronically using
4 ©2021 Wiley Rein LLPThe FARA Handbook
August 2019, the DOJ directed the Turkish Radio &
What are the Penalties for Television Corporation to register its U.S. affiliate.
Noncompliance? Additionally, according to press reports, the DOJ
ordered Qatari news outlet Al Jazeera to register
The DOJ may impose criminal penalties on
U.S. operations of its affiliate AJ+ as a foreign
agents that intentionally and willfully violate any
agent in September 2020. While the DOJ has not
provisions under the statute, including fines up to
confirmed these reports, AJ Jazeera publicly
$10,000, imprisonment for no more than five (5)
condemned the move. The move follows a years-
years, or both. Agents that willfully make false
long campaign from Congress urging the moves.
statements or intentionally fail to provide
These recent registrations underscore the DOJ’s
material information in support of their
continued heightened focus on FARA
registration or supplemental statements are also
enforcement, specifically, ensuring that all entities
subject to these sanctions. In the majority of
that trigger a registration requirement and are
cases, however, the DOJ has found
not eligible for an exemption – whether lobbyists,
noncompliance with registration requirements to
public relations companies, or even media outlets
be unintentional, permitting agents to remedy
– are registered under the statute.
any deficiencies instead of instituting criminal
proceedings. Heightened Focus on China and U.S. Tech
Activities
Recent Developments in FARA The Trump Administration has signaled that
certain activities by U.S. tech companies could
Enforcement trigger a FARA registration requirement. In July
In recent years, the DOJ has begun to enforce 2020, Attorney General William Barr gave a
FARA more aggressively, such that FARA has now speech urging U.S. business leaders to remain
been thrust into the national spotlight. Given the alert about how the Chinese Communist Party
broad scope of the statute, the potential (CCP) may use them to promote policies or
consequences of noncompliance, and the DOJ’s politicians to advance the CCP’s interests, which
heightened focus on FARA enforcement, it is could implicate FARA. Barr’s statements
important that individuals and companies underscore that the statute is not limited to
representing foreign individuals, governments, or lobbying; it also includes public relations, image-
companies in the United States in a political or making, and other less formal activities. It also
quasi-political capacity carefully evaluate covers activity for not only foreign governments
whether their activities may trigger registration and foreign political parties, but also private
under FARA and consult counsel when in doubt. foreign corporations and private foreign persons.
Recent developments in FARA enforcement are Nor must a foreign agent be paid or even have a
outlined below. contract to trigger a FARA registration
requirement. Secretary of State Michael Pompeo
Media Registrations
also called on think tanks and foreign policy
There have been several recent press organizations to disclose their ties. While Pompeo
registrations under the statute. Russian network noted that such disclosure would not be required
RT was identified in January 2017 as having an for the State Department to engage with such
impact on the 2016 U.S. presidential election. entities, Department staff will “be mindful of
After months of pressure from the DOJ to register, whether disclosure has been made and of specific
T&R Productions LLC, the production company funding sources that are disclosed when
responsible for all English language content on determining whether and how to engage.” The
RT, registered with FARA on November 10, 2017. In policy is distinct from FARA, but in the same vein.
February 2019, Chinese state-run media
company CGTN America (CGTN) registered as a
U.S.-based agent of the Chinese government. In
5 ©2021 Wiley Rein LLPThe FARA Handbook
DOJ Public Advisory Opinions and disqualifying the agent from the
commerce exemption.
In June 2018, the DOJ released over 50 redacted
FARA advisory opinions addressing common Legal Exemption: A U.S. law firm
exemptions. The release of the opinions to the submitted an advisory opinion request
public was likely in response to the 2016 IG claiming that the legal exemption at 22
report’s recommendation. A few important U.S.C § 613(g) applied to its representation
exceptions are outlined below, but for a full list of of a foreign person and foreign bank. The
the advisory opinions, visit the DOJ website. DOJ agreed, noting that the law firm’s
activities were limited to the provision of
Definition of Agency: In response to a
legal services to the foreign person and
recent advisory opinion request, the DOJ
foreign bank in the context of a U.S.
concluded that a commentator hosting a
sanctions-related investigation and
television show that was produced by a
enforcement proceeding and were not
U.S. production company registered
intended to influence U.S. sanction policies
under FARA (because it was producing
beyond the law firm’s representation of
programming for a foreign state-owned
the foreign person and foreign bank,
network) was not required to separately
which would have disqualified the firm
register under FARA given the lack of an
from the exemption.
independent contractual relationship
between the commentator and the LDA Exemption: A U.S. law firm
foreign state-owned network. As the DOJ representing a foreign bank submitted an
explained, “[The commentator]’s advisory opinion request claiming the LDA
contractual relationship is with [the U.S. Exemption under 22 U.S.C. § 613(h)
production company], a FARA-registered applied. As part of its representation of the
U.S. entity. Therefore, it cannot be said foreign bank, the law firm intended to
that the [commentator] is an ‘agent of a lobby Congress, special interest groups,
foreign principal’ who is acting ‘at the and the public. The DOJ concluded that
order, request, or under the direction or the law firm could not avail itself of the
control of a foreign principal.’” LDA exemption because the foreign bank
was part of the foreign government,
Commerce Exemption: A U.S. company
making the foreign government the
providing compliance and consulting
principal beneficiary of the law firm’s
services to a foreign state bank
efforts. As DOJ noted, the LDA exemption
submitted an advisory opinion request
does not apply where, as here, a foreign
seeking confirmation that FARA’s
government is the principal beneficiary of
commerce exemption at 22 U.S.C. §
an agent’s activities. See 18 C.F.R. § 5.307.
613(d) applied. The company
characterized its services for the bank as Since June 2018, the DOJ has released 52
private and non-political, claiming that additional advisory opinions on its website. These
its services do not serve a foreign opinions continue to help clarify the DOJ’s
interest. The DOJ disagreed, however. exemptions to FARA registration and help
Specifically, the DOJ concluded that the highlight current FARA enforcement efforts. For
U.S. company did not qualify for the example, an opinion released in August 2019
commerce exemption because the clarifies that foreign foundations are foreign
company’s activities were intended to principals for which FARA registration may be
demonstrate the bank’s fitness to required.
establish relationships with U.S. financial While the DOJ’s advisory opinions shed some light
institutions, thereby directly promoting on its application and interpretation of the FARA
the public interests of the foreign country statute, they also reinforce the heavily fact-
6 ©2021 Wiley Rein LLPThe FARA Handbook
specific nature of FARA registration obligation Whether the position advocated aligns
determinations. with the person’s subjective viewpoint;
Given that this considerable gray area exists, and
individuals and companies representing foreign The nature of the relationship between
individuals, governments, or companies in the the person and the foreign principal.
U.S. in a political or quasi-political capacity
should seek counsel for specific advice on FARA Additional Indictments Under
registration obligations and exemptions.
New DOJ Guidance on ‘Agency’
FARA
The DOJ published new Guidance entitled The Since the indictment of Paul Manafort in October
Scope of Agency Under FARA in July 2020. The 2017, the NSD has begun to enforce FARA more
new Guidance recognizes that: “[B]ecause FARA aggressively than it has in decades, resulting in a
regulates expressive activities by U.S. persons significant increase in criminal indictments. The
that implicate the rights protected under the First DOJ has also expanded FARA’s reach, using it to
Amendment, it is important that the standards target covert state action.
governing its application be clear.” As a result, In February 2019, Gregory Craig, former Skadden
the Guidance presents the DOJ’s “understanding Partner and former White House Counsel to
of a key threshold determination in assessing President Obama, was charged with making false
when the requirements of the Act apply – i.e., the statements to the DOJ in connection with his work
definition of ‘agent of a foreign principal.’” The for Ukraine. Skadden settled the DOJ’s claims in
Guidance next makes clear that “whether a January 2019. The terms include retroactively
person is an agent for purposes of FARA depends registering as a foreign agent, reviewing
on whether the relationship between the foreign Skadden’s policies for responding to government
principal and the person is such that the latter’s inquiry, and paying the U.S. Treasury Department
enumerated activities within the United States over $4.6 million made from its Ukraine work. In
may be fairly attributed to a foreign principal.” September 2019, Gregory Craig was acquitted of
The DOJ’s “ultimate test for agency under FARA is the felony charges.
whether it is ‘fair to draw the conclusion that an On July 23, 2019, a federal jury convicted Bijan
individual is not acting independently, is not Rafiekian, an Iranian-American businessman and
simply stating his or her own views, but is acting Michael Flynn’s partner in pro-Turkey lobbying,
as an agent or alter ego of the foreign principal.’” on charges of conspiring to act as an agent of a
Accordingly, the government looks for evidence foreign government, conspiring to make false
of “some level of power by the principal over the statements and wilful omissions in a FARA filing,
agent or some sense of obligation on the part of and acting in the U.S. as an unregistered agent of
the agent to achieve the principal’s request.” As a foreign government. On September 24, 2019, a
part of this analysis, the DOJ considers the judge in the U.S. District Court for the Eastern
following factors: District of Virginia overturned the conviction.
Whether those requested to act were In October 2020, Trump fundraiser Elliott Broidy
identified with specificity by the principal; pleaded guilty to conspiracy to violate FARA for
The specificity of the action requested; his role in a “back-channel lobbying campaign”
Whether the request is compensated or for the U.S. government to drop an investigation
coerced; into a matter involving the embezzlement of
billions from 1Malaysia Development Berhad
Whether the political activities align with
(1MDB), a strategic investment and development
the person’s own interests;
company wholly owned by the Government of
Malaysia, and to remove and return a Chinese
citizen to the People’s Republic of China. Nickie
7 ©2021 Wiley Rein LLPThe FARA Handbook
Lum Davis (a U.S. businesswoman) and a former gain access to non-public and classified
DOJ employee also pleaded guilty for their roles information.
in the conspiracy.
The Trump Administration has also used FARA to Wiley Experience with FARA
target internet domains used by Iran’s Islamic
Wiley’s FARA practice is an established practice
Revolutionary Guard Corps (IRGC). In October
that has been in existence for well over 20 years.
and November 2020, the FBI seized eight domain
Our attorneys routinely counsel clients on whether
names because the sites violated FARA’s
registration is required under FARA and, if so, the
registration and disclosure requirements. The
requirements for registration. We also regularly
seized websites purported to be independent
draft advisory opinion requests on behalf of
news outlets when in reality, they were operated
clients to the NSD of the DOJ, which is tasked with
by or on behalf of the IRGC to target the United
administering and enforcing the statute. Wiley has
States with pro-Iranian propaganda without
drafted dozens of advisory opinion requests in
notifying the American public that the content of
recent years, most of which have resulted in a
the websites was published on behalf of the IRGC
positive result for our clients.
and the Iranian government.
Wiley attorneys actively assist clients with
In addition, and as mentioned above, the DOJ
completing and executing their FARA filings and
has used FARA to target Chinese espionage
ensuring full compliance with the law. We also
efforts in the United States. For instance, in
provide FARA trainings to foreign agents and
October 2020, eight Chinese officials involved in
potential foreign agents on an individual and
a “multi-year campaign of harassment and
company-wide basis. Additionally, our attorneys
stalking” directed at U.S. residents to force their
have assisted clients with preparing for and
return to China as part of “Operation Fox Hunt”
participating in DOJ FARA audits as well as
were charged with conspiring to act in the United
responding to DOJ FARA-related subpoenas.
States as illegal agents of China. The DOJ also
charged a New York City Police Department Our attorneys have handled FARA matters for a
official with acting as an illegal Chinese agent in variety of clients, including 501(c) entities, public
September 2020. Additionally, the DOJ charged a relations firms, law firms, media companies,
Singaporean doctoral student with acting as an government affairs practices, public policy
illegal Chinese agent for attempting to cultivate consulting firms, tourism agencies, and foreign
relationships with Americans with high-level governments/foreign political parties.
security clearances so that China could seek to
Contact Us
Daniel B. Pickard Tessa Capeloto
202.719.7285 202.719.7586
DPickard@wiley.law TCapeloto@wiley.law
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