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In an attempt to clarify the scope of the concept of “agency” in context of the Foreign Agents Registration Act (“FARA”), the Department of Justice’s FARA Unit posted guidance earlier this month.

In May, the FARA Unit posted an explainer on the scope of “agency” under FARA, stating a commitment to increase transparency around enforcement of the statute and explaining that because FARA regulates expressive activities, “it is important that the standards governing its application be clear.” Notably, courts have used the Restatements of Agency as a guide in assessing “agent” status, as well as examining practical indicia of “agent” status such as contract language, reporting lines, statements within work product, payment streams, statements in internal files, and internal descriptions in emails and other records.

According to the FARA Unit, “the ultimate test for agency under FARA is whether it is ‘fair to draw the conclusion that an individual is not acting independently, is not simply stating his or her own views, but is acting as an agent or alter ego of the foreign principal.’” The FARA Unit explained that it would consider several factors, including:

• Whether those requested to act were identified with specificity by the principal; for example, a general plea by a foreign government to members of a group for political support does not make them agents;
• The specificity of the action requested, e. whether the request is a general plea or a more specific instruction;
• Whether the request is compensated or coerced;
• Whether the political activities align with the person’s own interests; in other words, a person who advocates for a policy change that will benefit her financially is less likely to be an agent than one who advocates for policy that does not appear to benefit her personally;
• Whether the position advocated aligns with the person’s subjective viewpoint;
• The nature of the relationship between the person and the foreign principal, including whether there is an ongoing relationship between the person and the foreign principal, whether the person’s actions are coordinated with the foreign principal, whether the person seeks or receives feedback on his performance, the frequency of meetings between the person and the foreign principal, the existence of a written agreement documenting the relationship, and whether the action is a one-off or part of a pattern.

The term “request” in the Act, the Unit clarified, connotes some form of authority by the principal over the agent.

As enforcement of FARA continues to ramp up, the FARA Unit may be making an effort to provide some clarity on the broad and vague terms of the Act.