Building Entrance Sign for the Department of Justice in Washington DC

NSD Deputy Assistant Attorney General Discusses Evolution of FARA Enforcement At Conference

On December 4, 2020, Deputy Assistant Attorney General for the National Security Division (“NSD”) of the Department of Justice (“DOJ”) Adam Hickey delivered remarks to the American Conference Institute’s 2nd National Forum on the Foreign Agents Registration Act (“FARA”). Hickey addressed how DOJ’s enforcement of FARA has evolved and responded to criticisms of the law. Caplin & Drysdale Member Matt Sanderson is a co-chair of the Forum.

Hickey discussed how the NSD has changed its approach to enforcing FARA since 2015, when the DOJ’s Inspector General audited the FARA program and found that DOJ lacked a strategy for the statute. Hickey highlighted how the NSD began taking a more aggressive approach in administrative inquiries, increasing h letters of inquiry, inspections, and notices of deficiency, as well as specifically searching out failures to register and false registrations that ultimately led to criminal prosecutions. He also noted the NSD’s efforts to increase transparency around FARA by posting advisory opinions and revamping the FARA website. In 2019, Hickey said, twice as many new registrants and new foreign principals filed as in 2016, and almost twice the number of individuals who work for registrants (known as “short-form registrants”) have registered.

Hickey also discussed NSD’s recent push to register foreign media organizations under FARA. Referencing RT and Sputnik, two media companies whose parent company is owned by the Russian government, Hickey highlighted the challenge of focusing NSD’s limited enforcement resources in an evenhanded and principled way. He emphasized that, in determining whether an entity is required to register under FARA, “the most important factors are the kind of ‘direction or control’ exercised by the foreign principal (whether it is editorial and concerns the content of the informational materials) and whether the foreign principal is a foreign government or political party.” He noted that “it is not uncommon for foreign governments to fund news organizations; but if those organizations have a transparent and independent governance structure and editorial independence, even substantial funding may not be dispositive.”

Other relevant factors, Hickey explained, “have included whether U.S. editors make the final call on content disseminated here (or whether headquarters does); whether the organization’s style guide promulgates ‘policy’ on how to cover particular topics; whether there is evidence of censorship; whether counterfactual reporting aligns closely with a regime’s official statements and policies (which can indicate direction or control); and whether the organization’s reputation for independence is otherwise belied by the evidence.”