Navigating 18 U.S.C. § 951: Agents of foreign governments 

Navigating 18 U.S.C. § 951 can potentially create compliance challenges for nonprofits and activists if they engage with foreign governments as well as entities or persons that may be viewed as an intermediary for a foreign government. The statute covers a broad swath of activities in the U.S. and does not require that a person even know of 18 U.S.C. § 951’s notification requirements to be convicted of violating the statute.  

This briefer provides an overview of what activity requires notification under 18 U.S.C. § 951; describes how lack of clarity over key terms in the statute can create compliance concerns for some nonprofits; and ends with guidance for navigating the law. The briefer is for informational purposes only and does not constitute legal advice.   

18 U.S.C. § 951 

18 U.S.C. § 951 was enacted as part of the Espionage Act of 1917 during World War I. It was designed as a “catch-all” statute the government could use to target agents of foreign governments in the U.S. The operative part of the statute reads:  

Whoever. . . acts in the United States as an agent of a foreign government without prior notification to the Attorney General . . . shall be fined under this title or imprisoned not more than ten years 

The Act defines “agent of a foreign government” as “an individual who agrees to operate within the United States subject to the direction or control of a foreign government”. 

As such, the required elements to violate 18 U.S.C. § 951 are that:  

 (1) a person “acts” in the United States;   

(2) the action is subject to the “direction or control” of a “foreign government”;  

(3) the person fails to notify the Attorney General prior to taking the action. 

There is no U.S. Supreme Court case directly interpreting 18 U.S.C. § 951, but federal circuit and district courts have interpreted the statute.  

Acts. Courts have interpreted “acts” broadly. As one circuit court explained, under 18 U.S.C. § 951 a jury only has to find that a defendant “took acts of some kind on behalf of” a foreign government. United States v. Latchin (7th Cir.2009) The “acts” do not have to be espionage-like or subversive. United States v. Duran (11th Cir., 2010).

Direction or control. Courts have generally found that there must be mutual agreement to be considered acting at a foreign government’s “direction or control”. Independent activity, even if it is in the interest of a foreign government, is insufficient. See United States v. Rafiekien (4^th Cir. 2021); United States v. Chung (9th Cir., 2011). Federal circuit courts have generally interpreted “direction” as creating a more “hands-off” agency relationship than “control”.  See United States v. Rafiekien (4^th Cir. 2021) One circuit court analogized “direction” to “guidance or supervision”. See United States v. Romain (11^th Cir., 2026).

There is uncertainty about the threshold for determining when one is acting at a foreign government’s “direction”. For example, it is not clear when acting at a foreign government’s “request” can be considered acting at their “direction”. In upholding the conviction of defendants for conspiring to violate 18 U.S.C. § 951, one circuit court described “direction” as acting “consistently” at a foreign government’s “needs” and “requests”. See United States v. Romain (11^th Cir., 2026). Another circuit court though rejected as too expansive the government’s argument that a person becomes an “agent” under 18 U.S.C. § 951 “whenever he ‘is willing to do something the foreign principal requests.’” See United States v. Rafiekien (4^th Cir. 2021) These two decisions may represent a split in interpretation of the meaning of “direction” between circuit courts. Alternatively, they could potentially be explained by the difference between acting on the basis of a one-off or occasional “request” of a foreign government versus doing so “consistently.”

Foreign government. Justice Department regulations make clear that a “foreign government” includes a foreign government “official” (28 C.F.R. 73.1(a)). A foreign government also includes foreign government subdivisions, such as provinces or municipalities, as well as insurgents claiming to govern part of a country (28 C.F.R. 73.1(b)).

A person does not have to be a direct agent of a foreign government to be convicted under 18 U.S.C. § 951. Instead, the Justice Department only needs to show that a person knew they were acting as an agent to a person or entity serving as an “intermediary” for the foreign government. United States v. Rafiekien (2021).  For example, in United States v. Romain (2026), the 11^th Circuit upheld the conviction of U.S. activists for conspiring to violate 18 U.S.C. § 951 for taking “direction from” the head of the Russian Federation-backed “Anti-Globalization Movement”. One of the activists had described the Anti-Globalization Movement as an “instrument of Russian government”. He had also acknowledged that it had reportedly received funding from a charity tied to Russian President Putin. Similarly, in United States v. Rafiekien (2021) the 4^th Circuit upheld the conviction of the head of a U.S. consulting firm that had a contract with a Dutch company to engage in a lobbying campaign against a Turkish dissident. The Justice Department claimed the consulting firm head knew the company was an intermediary for the Turkish government.

Intent. Since 18 U.S.C.  § 951 does not have an explicit intent requirement, courts have interpreted it to be a general intent statute. In other words, persons do not need to be aware of the legal requirement to notify the U.S. Attorney General under the statute to be convicted, only that they knew they were acting in the United States at the “direction or control” of a foreign government and failed to register. See United States v. Romain (11^th Cir., 2026); United States v. Dumeisi (7^th Cir., 2005).

Notification requirement. 18 U.S.C. § 951’s regulations describe the information required to be provided to the U.S. Attorney General upon notification, namely the identity of the foreign government or government official of which they are an agent, a description of the activities in which they will engage, and the planned duration (28 C.F.R. 73.3). Unlike FARA, the Justice Department does not make this information publicly available and there is no public searchable database of those who have notified the government under 18 U.S.C. § 951.

Exemptions. There are four exemptions to notification under 18 U.S.C. § 951, but for nonprofits they have relatively limited applicability. These are: (1) a diplomatic or consular officer of a foreign government; (2) any official and publicly acknowledged and sponsored official or representative of a foreign government; (3) any officially and publicly acknowledged and sponsored member of the staff of, or employee of, an officer, official, or representative described in (1) or (2), who is not a United States citizen; or (4) any person engaged in a legal commercial transaction. The legal commercial transaction exemption is perhaps the most important and exempts routine commercial activity with a foreign government from notification.

Comparison to FARA 

	FARA (22 USC 611)	18 USC 951
Covered activities	7 covered activities	Any activity
Agent of who?	A foreign principal, which includes foreign nationals, companies, and nonprofits	Limited only to a foreign government or their intermediary
What makes one an “agent”	Broader definition: Includes acting at direction, control, request, or order	Narrower definition: Must act at “direction or control”
Exemptions	Broader: 8 listed exemptions, including bona fide commercial, academic, and religious activity	Narrower: 4 listed exemptions, including legal commercial transactions
Intent requirement for criminal liability	Willful violation	General intent
Availability of Registration/Notification Information	Public database on Justice Department website	Not public
Criminal penalty	Up to 5 years in prison or fine	Up to 10 years in prison or fine

Under Justice Department regulations, if one registers as a foreign agent under FARA, that satisfies one’s notification requirements under 18 U.S.C. § 951 (28 C.F.R. 73.3 (e)). However, notifying the Attorney General under 18 U.S.C. § 951 does not satisfy FARA’s registration requirements (28 C.F.R. 73.6).   

Concerns Raised by 18 U.S.C. § 951 for Nonprofits 

The Justice Department traditionally focused enforcement of 18 U.S.C. § 951 on espionage type cases involving clandestine activity, particularly of foreign adversaries. However, the Department may be shifting its enforcement posture. In September 2026, the Department issued a press release reminding the public of their registration and notification obligations under FARA or 18 U.S.C. § 951 respectively. The release stated: “If a person acts as an agent of any foreign power to carry out any public activity, including (but not limited to) public demonstrations designed to further the propaganda or other goals of the foreign power, he or she must register with or notify the appropriate federal authorities.” While the press release’s impetus is unclear, it may indicate the Department will enforce 18 U.S.C. § 951 (and FARA) more aggressively moving forward.   

Key challenges for nonprofits and their staff in navigating 18 U.S.C. § 951 include:  

1. Intent requirement. One can violate 18 U.S.C. § 951 without knowing of its notification requirements. This can create compliance challenges for nonprofits or activists, particularly those who engage in activity with foreign governments or their intermediaries that could create an agency relationship and are unaware of the law.
2. Ambiguity in the statute.
   1. “Foreign government”. Courts have provided limited guidance on what is a foreign government or official under 18 U.S.C. § 951. For example, it is unclear if certain universities or broadcasters run by or funded by foreign governments could potentially be considered a “foreign government” under the statute. Similarly, on its face, 18 U.S.C. § 951 could seemingly require notification for acting at the “direction” of the Catholic Pope in the U.S. Agents of a foreign government may still meet an exemption under the statute, but the lack of clarity about the breadth of what is a foreign government can create compliance uncertainty.
   2. “Agent”. One must notify the U.S. Attorney General if one acts at the “direction or control” of a foreign government. As noted above, at least one circuit court interpreted “direction” to mean acting “consistently” at a foreign government’s “needs” and “requests,” and analogized acting at the “direction” of a foreign government to acting at its “guidance”. United States v. Romain (11^th Cir., 2026) While courts have found that “direction” is a looser agency relationship than “control”, the lack of a brightline rule for determining agency can cause confusion for nonprofits that engage with foreign governments or their intermediaries.
3. Conspiracy can broaden the statute. In 18 U.S.C. § 951 cases, defendants are frequently charged with not just violating the statute, but also conspiring to do so (punishable by up to five years in prison) (18 U.S.C. 371). To prove a conspiracy, the government must present evidence of (1) an agreement among two or more persons to engage in criminal activities; (2) one or more overt acts to implement the agreement; and (3) the requisite intent to commit the substantive crime. (18 U.S.C. 371) As such, to be convicted of a conspiracy under 18 U.S.C. § 951 parties to the conspiracy must only agree to act at the direction or control of a foreign government – or their intermediary – and take at least one overt act towards doing so. This is true even if no one in the conspiracy ever actually acted at the direction or control of a foreign government. Similarly, parties to the conspiracy do not need to know there was a notification obligation under 18 U.S.C. 951 to be convicted of conspiring to violate the statute. See United States v. Romain (11^th Cir., 2026)
4. First Amendment and statutory interpretation concerns. Courts have generally rejected First Amendment challenges to 18 U.S.C. § 951, finding that while the statute does implicate speech, the federal government has a compelling interest in knowing about the activity of foreign government agents in the U.S. and the statute’s notification requirement is content neutral. See United States v. Romain (11^th Cir., 2026); United States v. Duran (11th Cir., 2010). Persons charged under the Act may though be able to raise a selective enforcement claim under the First Amendment. Similarly, courts have rejected some Justice Department interpretations of the statute as overly expansive. See United States v. Rafiekien (4^th Cir. 2021)

Navigating 18 U.S.C. § 951 

To navigate compliance with 18 U.S.C. § 951, nonprofits and others that engage with foreign governments or their intermediaries should consider taking the following steps: 

1. Consult legal counsel. If engaged in activity that may require notification under 18 U.S.C. § 951, discuss with legal counsel potential notification obligations.  

2. Track 18 U.S.C. § 951 enforcement developments. 18 U.S.C § 951 has traditionally, but not only, been enforced in espionage type situations involving foreign governments. However, Department of Justice enforcement priorities may be shifting, which could heighten compliance risks for some nonprofits.  

3. Develop a compliance strategy. Organizations that have risk of potentially violating 18 U.S.C. § 951 should develop a compliance strategy along with legal counsel. This could include:  
   • Training key staff. Train key staff to be able to identify when there may be a 18 U.S.C. § 951 compliance issue. 
   • Understand what activities do and do not trigger notification. Key limiting factors on 18 U.S.C. § 951’s breadth, include: (1) The covered activity needs to be in the United States; (2) The statute does not cover agency relationships with foreigners who are not foreign governments or their intermediaries; (3) One must act at a foreign government’s “direction or control”; and (4) commercial transactions are exempted.  
   • Make clear that one is acting independently: When engaging with a foreign government, make clear your work is furthering your organization’s own interests and you undertook your actions on your own behalf. Do not use language or take actions that can be misconstrued as creating an agency relationship under 18 U.S.C. § 951 when it does not exist. For example, words or actions that make it appear one might be acting at the “direction” or “guidance” of a foreign government in the United States. 
   • 18 U.S.C § 951’s relationship to FARA. Activity that does not require notification under 18 U.S.C. § 951 may still be registerable under FARA. To learn more about FARA’s registration requirements see USCNL’s resource on Navigating the Foreign Agents Registration Act.     

---

Additional Resources