www.FARA.us

Here are some notable items in this latest batch:

• The Department has drifted from its prior approach to the “activities not serving predominantly a foreign interest” exemption at Section 613(d)(2). Historically, the Department has applied the exemption to prospective “agents” so long as their activities were “neither directed by a foreign government or foreign political party nor intended to promote the interests of either.”  This past approach is consistent with the intent of Congress, which amended FARA in 1995 for the express purpose of limiting FARA to agents of foreign governments and political parties, such that representatives of “foreign corporations, partnerships, associations, and individuals are required to register under the Lobbying Disclosure Act, where applicable, but not under FARA.”  The Department appears to have untethered itself from this approach in the latest batch of advisory opinions.  In a June 24, 2024 Advisory Opinion, for example, the Department told a U.S. law firm that Section 613(d)(2) did not exempt its representation of a private foreign charity in “impact litigation” within the United States because the foreign charity proposed, funded, recruited other potential plaintiffs, provided “expertise,” and was “not expected to be disclosed publicly.”  Although the Department had previously analyzed the application of the Section 613(d)(2) exemption on numerous past occasions, these articulated factors were entirely novel and used to deny the application of the Section 613(d)(2) exemption despite the complete lack of any foreign government or foreign political party involvement.  This could be a preview of the Department’s still-yet-to-be-released draft revision to its FARA regulations, which would represent a drastic departure from congressional intent and an unfortunate misuse of a registration exemption to expand FARA’s scope beyond those working on behalf of foreign governments, foreign political parties, and their proxies.
• The Department is more likely in 2024 to tell Advisory Opinion Requestors they need to register. The Department has now published 178 Advisory Opinions overall, with 69 requestors (i.e. 38 percent of requestors) told to register under FARA.  In 2024, though, 13 of 19 requestors (i.e. 68 percent of requestors) to date have been instructed to register.  This may be a temporary aberration, but it could also represent a trend signifying that the Department is less willing to affirmatively tell individuals and organizations that they need not register.   
• The Department blurred the analytical framework for how FARA applies to lawyers. The Department has previously applied the “legal representation” exemption at Section 613(g) in 21 different Advisory Opinions.  Although there are some inconsistencies in those prior Opinions and some matters left unaddressed, the latest batch of Advisory Opinions contains two opinions that drastically change the analytical framework for lawyers who may need to register under FARA.  In a May 28, 2024 Advisory Opinion, the Department exempted from registration a U.S. law firm’s lawyers who worked on an “audit” of a foreign government’s export controls, even though other lawyers at the firm who were FARA-registered would use the audit’s results in contacts with U.S. government officials outside of judicial, enforcement, and regulatory proceedings.  This appears to contradict prior advice about producing content for distribution to U.S. officials and the U.S. public (g., April 21, 2020 Opinion).  Separately, and perhaps more importantly, the Department said in a June 24, 2024 Advisory Opinion that the act of filing a lawsuit by itself would be registrable “political activity” ineligible for the “legal representation” exemption at Section 613(g) if the lawsuit would “highlight … policy implications,” “spur legislative and rulemaking actions,” and/or cause private industry to “conform” in a manner preferred by a privately run and privately funded foreign charity.  Under this framework, the client’s intent and objectives in filing the lawsuit rather than a lawyer’s actions (e.g., participation in public relations activities, “attempts to influence” U.S. officials) would determine whether the Section 613(g) exemption applies.  This new condition appears to be without basis in FARA’s statutory text and without precedent in past Department guidance.  

You can read summaries of all published FARA Advisory Opinions here: https://www.fara.us/resources-opinions.

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