Fixing the Foreign Agents Registration Act

Photo: Jon Elswick/AP

The blowback over forcing Russian news outlets “Russia Today” (RT) and “Sputnik” to register under the Foreign Agents Registration Act (FARA) has raised questions about whether the law does enough to track foreign influence in the modern media age – or whether it’s the wrong tool to use in the battle against Russian disinformation. FARA historically has been loosely enforced, with only minor implications for the day-to-day operations of foreign agents. But it’s designed to counter influence by lobbyists, not media organizations. To monitor foreign influence effectively, FARA needs to be reformed and adapted to current realities – both on- and offline.

  • FARA legislation was enacted by Congress in 1938, and amended to widen its powers to spot influence peddling in 1966. Its initial focus was aimed at combatting Nazi propaganda at the onset of the World War II. More recently, FARA’s scope has been applied to political lobbyists, like former Trump campaign chairman Paul Manafort, who was indicted on multiple counts of violating FARA by Special Counsel Robert Mueller’s investigation into possible ties between Russia and the Trump campaign.
  • FARA states that “foreign political parties, a person or organization outside the United States, except U.S. citizens, and any entity organized under the laws of a foreign country or having its principal place of business in a foreign country” can fall under its scope.
  • Under the law, lobbyists must identify themselves as foreign agents by registering within 10 days of signing a deal with a foreign client, plus they must submit a copy of the contract. Any promotional materials they send out on behalf of that client must be sent to the Justice Department within 48 hours of their dissemination – and the materials themselves must include a disclosure statement saying they were distributed on behalf of that foreign client. The materials are then made available to the public on the Justice Department’s website.
  • Under that law, Russia Today (RT) and Sputnik would supposedly have to carry a disclaimer on their websites and in their broadcasts seen within the U.S.

Mandy Smithberger, Director,
Military Reform Project, Project on Government Oversight

“RT’s registration should clarify for American viewers that the outlet is acting in the interests of Russia. But it hasn’t resulted in updated notices on the many RT bus ads around the city, which it should under the law.”

Jane Chong, Former Deputy Managing Editor, Lawfare Blog

“There may be some tough cases when distinguishing between legitimate media organizations and state mouthpieces. This is not one of them. Even putting aside the people on RT’s payroll and its consistent alignment with the Kremlin, there’s the matter of its entirely opaque governance structure. Legitimate news services funded wholly or partially by governments have a range of rules and policies in place to ensure transparency, board independence and disclosures of conflicts of interest. This is true of the BBC; it’s true of NPR. Meanwhile we have no idea who sits on RT’s secret supervisory board.”

The move to require RT and Sputnik to register follows the conclusion by the U.S. intelligence community last January that Russia engaged in an active measures campaign to interfere with the 2016 U.S. presidential election, including flooding U.S. and international social media via bots and proxies with false information, and allegedly funneling real hacked emails to be  released via WikiLeaks from the Democratic National Committee and members of the Clinton presidential campaign.

  • Last January, the U.S. intelligence community issued a report stating that RT is the “Kremlin’s principal international propaganda outlet.” In September, the Department of Justice sent a letter to RT, pressing it to register under FARA by Nov. 13, a deadline to which RT adhered. The DOJ’s ruling on RT and Sputnik marks a return to FARA’s original focus on foreign propaganda.

Steven L. Hall, Former Member of the CIA’s Senior Intelligence Service

“I think it sends a message that really needs to be sent back to the Kremlin — namely that you’re not going to able to run roughshod, taking advantage of our open society, which the Russians are expert at doing.”

RT and Sputnik have both condemned the registration and called it a violation of freedom of speech, which plays into the message of the Russian active measures campaign that the U.S. does not follow its own democratic principles – part of a larger campaign meant to dent the U.S. reputation abroad. The news outlets argue that they have been singled out and forced to work under unacceptable circumstances, which eventually will drive them out of the country. “The order to register under this law is illegitimate. The U.S. lawyers tell us that this demand is illegitimate and contradicts U.S. legislation,” RT editor-in-chief Margarita Simonyan said, ahead of registering for the act. “Nevertheless, the same lawyers tell us that we are obliged to register, otherwise…our employees and our property will be arrested.”

  • In late November, the Congressional Radio and TV Correspondents’ gallery retracted RT’s media credentials for Capitol Hill. This decision prompted RT editor-in-chief Simonyan to complain that RT is treated unfairly since other media organizations registered under FARA are still allowed to attend press briefings.
  • In a retaliatory move, the Russia State Duma (lower house of parliament) passed legislation that Russian President Vladimir Putin signed a new law in mid-November that allows Russian authorities to force non-Russian media outlets to register as foreign agents and disclose funding. As in the United States, the Russian Ministry of Justice will make the decision about who will be classified as a foreign agent. Russian authorities soon after listed Voice of America and Radio Free Europe/Radio Liberty as foreign agents.

The purpose of FARA is not to prevent those registered under it from operating in the United States. Rather it requires entities determined to be foreign agents to operate transparently, by labeling their content with disclaimers, disclosing foreign funding, and declaring any contacts with U.S. authorities and government officials on behalf of the foreign agent.

  • Russian news companies are not the first foreign news outlets to fall under FARA. But they are the first to be registered following Russia’s brazen interference in the American election process. NHK Cosmomedia America, Inc., and China Daily, which distributes widely read newspapers and runs online news platforms, are also listed as foreign agents under FARA.

Jane Chong, Former Deputy Managing Editor, Lawfare Blog

“U.S. Customs requires ‘Made in China’ on your imported T-shirts, and many other federal agencies impose different kinds of labeling regulations on a range of products put into the stream of commerce. FARA rightly requires some of the same for the information that other governments put into our stream of discourse, which we know is highly vulnerable to manipulation.”

Mandy Smithberger, Director,
Military Reform Project, Project on Government Oversight

“FARA was not intended to limit speech, and countries claiming it does squash speech, civil society, and freedom of the press are deliberately misreading and misapplying its principles.”

One key issue with respect to FARA is the undefined criteria used by the U.S. government when determining whether an entity should be categorized under FARA. While the U.S. has listed Russian news outlets RT and Sputnik under FARA due to their alignment with Russian government policy and their opaque editorial practices, other foreign state-run media companies do not necessarily share the same level scrutiny.

  • Many state-funded media companies operate in the United States, such as France24 or German public broadcasting, and there are no calls for them to register as foreign agents, presumably because their governments do not stand accused of interfering with U.S. politics.
  • There is no defined threshold of evidence or activity that can help determine when a media company has crossed a line from educating and reporting to illegally trying to influence U.S. officials and U.S. policy, prompting both the Committee to Protect Journalists and the Columbia Journalism Review, to criticize the move to push RT and Sputnik to register as foreign agents.
  • FARA has also not been adapted to account for the new social media realities that allow foreign agents to operate in disguise through bots and trolls, and still be considered credible sources of information.
  • The FARA filing rules are onerous for business, but nearly impossible to follow for genuine media outlets, which reach out to anonymous sources that are not disclosed publicly as part of the journalism business model. FARA renders the very act of meeting with an anonymous source a potential violation of federal law, if that meeting is not disclosed to the U.S. government.

Carmen Medina, Former CIA Deputy Director of Intelligence

“The U.S. is at a huge strategic disadvantage when it comes to the New Media Wars because our information environment is so open and rich. Anyone interested in understanding American society to a fine, granular degree can do so. Russia and China don’t offer the U.S. the same rich operating environment. I’m afraid there is nothing that can be done to change that imbalance, unless of course the American public is prepared to abandon most of its First Amendment rights.”

In its current form, the legislative scope of FARA is vague, prone to selective enforcement, and leaves the United States vulnerable to retaliatory actions by foreign governments.

  • Authoritarian regimes around the world have used FARA as a pretext to pass their own foreign agent laws, as a briefing paper by the International Center for Not-for-Profit Law In Hungary, Prime Minister Victor Orban’s administration passed a law last June imposing harsh restrictions on nonprofit organizations that receive international funding – one of several foreign governments that has enacted similar policies, citing FARA as their justification.

Jane Chong, Former Deputy Managing Editor, Lawfare Blog

“The concern about Russian retaliation against U.S. journalists is significant, but that can’t hold us back from requiring RT to comply with lawful registration requirements. FARA amounts to basic transparency measures, and fear of an inappropriate response from foreign governments can’t justify our failure to enforce that baseline.”

Steven L. Hall, Former Member of the CIA’s Senior Intelligence Service

“With all due respect to those reporting in Russia, the Russians already control the arena completely in Moscow. If there is a Western journalist who is meeting someone the Kremlin doesn’t want them to meet, the FSB is expert at getting a hold of those people, knocking on those doors, and stopping the meeting, or saying next time you meet with that journalist, here’s what we want you to say.”

To be more effective, FARA needs to be reformed and adapted. This effort could take many forms: a definition of the red lines a media organization would have to cross to trigger FARA registration to make sure the law is not used to broadly; and the introduction of civil fines for those foreign agents who do not sufficiently label their filings, to make the law more effective.

  • Without such a definition, outlets like RT and Sputnik can portray themselves as victims that have been unfairly targeted by a U.S. “state-led campaign” that ignores the freedom of speech guaranteed under the U.S. constitution. Sputnik is taking advantage of the notoriety of the FARA drama to acquire an additional radio frequency to reach further listeners.
  • Without a clearer definition of what landed foreign media outlets in the Justice Department crosshairs in the U.S., American reporters abroad, especially in Russia, will find their access to information curtailed.

Mandy Smithberger, Director,
Military Reform Project, Project on Government Oversight

“A report issued by the Inspector General last year included concerns by some that the Department of Justice’s national security division was under-utilizing FARA as a counterintelligence tool by pursuing registration for violators of the law rather than prosecutions. Before expanding FARA as a counterintelligence tool we’d like to see enhancements to its effectiveness as a disclosure tool, including incorporating civil fines to improve compliance and timeliness, and making registration decisions public.”

— Researcher Teresa Eder contributed to this piece.

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