Think Tanks May Need To Rethink FARA Registration

• Published date: 28 November 2022
• Subject Matter: Government, Public Sector, International Law, Terrorism, Homeland Security & Defence, International Trade & Investment
• Law Firm: Torres Trade Law, PLLC
• Author: Mr Derrick Kyle and Alex Dieter

When considering who must register under the Foreign Agents Registration Act ("FARA" or "the Act"), one normally thinks of individuals, law firms, or marketing firms, the typical kinds of agents that must register for lobbying or image-laundering activities on behalf of foreign persons.

But two advisory opinions released earlier this year add another type of entity to the list: so-called "think tanks." The advisory opinions, while partially redacted, provide valuable guidance on the status of "research and consulting" firms, as they are described in the opinions, with regard to FARA.

FARA and Advisory Opinions

FARA is a federal disclosure requirement law that aims to combat covert foreign influence in the United States by promoting transparency in the political, media, and public relations activities of "agents of foreign principals."¹ The Act requires certain entities and individuals in the United States that are acting on behalf of foreign principals to (i) register as foreign agents with the U.S. Attorney General, within ten days of becoming an agent, (ii) disclose information related to their foreign representations, including by publicly filing and conspicuously labeling informational material distributed in the United States, and (iii) maintain written records for inspection by U.S. law enforcement authorities.

Importantly, however, the Act also provides numerous exemptions from its registration, disclosure, and recordkeeping requirements. As we've discussed previously (in recent articles and podcasts), FARA is experiencing a renaissance in public interest, media coverage, and governmental concern due in large part to a recent surge in enforcement activity from the U.S. Department of Justice ("DOJ"). The FARA Unit in the DOJ's Counterintelligence and Export Control Section is responsible for the administration and enforcement of FARA.

One responsibility of the FARA Unit is to respond to inquiries concerning DOJ's enforcement intentions regarding activities that fall under the scope of the Act. According to the regulations implementing FARA, any "present or prospective agent of a foreign principal, or the agent's attorney, may request from [DOJ] a statement of the present enforcement intentions...under the Act with respect to any presently contemplated activity, course of conduct, expenditure, receipt of money or thing of value, or transaction, and specifically with respect to whether the same requires registration and disclosure pursuant to the Act."² Inquiries must relate to an actual transaction involving agents and principals that have already been disclosed to the Attorney General. In addition, inquiries must be submitted by a party to the...