Foreign Agents in an Interconnected World

FARA and the Weaponization of Transparency (2019)

Published: February 2019

The US Foreign Agents Registration Act (FARA) is a sweeping and generally underenforced public disclosure statute. Enacted in 1938, FARA was used during World War II to target Fascist propaganda, but by the 1960s its enforcement had shifted to lobbyists and public relations’ firms for foreign governments. After the 2016 Presidential election, FARA has gained favor among policymakers and prosecutors as a central tool to respond to a range of foreign influence in U.S. politics, including foreign lobbying, electioneering, and disinformation.

This piece by ICNL’s Nick Robinson argues that FARA’s breadth creates substantial risk that it will be used in a politicized manner. In the past decade, analogous transparency laws in other countries—often justified on FARA—have been weaponized to target dissenting voices with the stigma and burden of registering as a “foreign agent”. This piece undertakes an analysis of FARA to show how its broad and unclear provisions make FARA susceptible to being similarly used in the United States, especially against nonprofits, the media, and public officials. It examines three cases in which FARA was arguably enforced in a politicized manner, explains why strengthening theAct’s enforcement would likely exacerbate this problem, and discusses the Act’s potential constitutional deficiencies under the Supreme Court’s recent First Amendment jurisprudence.