Complying with the US disclosure law regulating lobbyists and other foreign agents is no easy task.
The very age of the Foreign Agents Registration Act (FARA), enacted in 1938 and minimally updated since then, makes that task considerably harder. Indeed, neither the statute nor its implementing regulations squarely addresses the realities of the modern world.
In some areas of compliance, the Department of Justice (DOJ) has been accommodating, taking steps informally to apply creaky, rigid, archaic language to the 21st century.
Yet by refusing to do so in one critical area, the department is putting the safety of FARA registrants at risk, without any real policy rationale and without any consistency.
The law in several places requires that foreign agents furnish the department with employees’ personal home addresses. Not just the addresses of all the lobbyists, communications professionals and other people servicing a foreign client’s accounts, but also those of all partners and owners of a registering firm — even if they don’t themselves qualify as foreign agents, or even have any contact or involvement with the foreign client.
FARA also requires that all information required to be included in a registration statement — including those home addresses — must be made available on a publicly searchable database.
Until last year, it was not uncommon for the Justice Department to allow firms to file residential addresses via cover letter or some other means where the addresses were disclosed online as “on file with DOJ”, or simply redacted. The department was particularly accommodating when a registrant indicated that it had legitimate concerns for the safety of the individuals listed, especially those who received threats against them or their families.
It’s not difficult to envision situations where that could happen. Foreign agents often represent opposite sides in violent geopolitical conflicts. They may work for governments or entities that have become highly politicized in the U.S. And the agents themselves may be dragged into their clients’ fights.
Foreign agents often represent opposite sides in violent geopolitical conflicts. They may work for governments or entities that have become highly politicized in the U.S. And the agents themselves may be dragged into clients’ fights.
Yet despite its prior reasonable accommodation to reality, last year DOJ abruptly changed course, noting that it did not have the statutory authority to permit the redaction of residential addresses. After being told informally that redaction would no longer be permitted, more than a dozen members of the FARA bar (an informal group of lawyers with deep FARA expertise) petitioned DOJ in February 2020 to formally permit the redaction of home addresses. The department’s response was terse: No, home addresses must be publicly disclosed on the Internet for all to see because the department is bound by the plain language of the statute.
Hogwash. DOJ has permitted redaction of home addresses both before 2020 and after the petition was rejected. And DOJ has informally allowed plenty of other activity that isn’t squarely within the statutory language, often times in areas where the potential consequences aren’t nearly as dire.
For example, FARA requires that whenever an agent disseminates “informational material” via means of interstate commerce, the agent must include a statement that the “materials are distributed by [the agent] on behalf of [the foreign principal,] and that additional information is on file with the Department of Justice, Washington, District of Columbia.” The law requires this statement to be placed conspicuously on each copy of the materials disseminated, and regulations clarify what the specific requirements are for propaganda in the form of “prints,” “broadcasts,” and “motion pictures,” while noting that the statement must “accompany” propaganda that is “not in the form of prints.”
The law doesn’t address digital communications. The boilerplate disclaimer is around 140 characters — half the maximum length of a tweet. Yet FARA doesn’t tell an agent what to do about a series of subsequent tweets. Must the disclaimer be repeated each time, in each tweet? Nor is the law particularly clear about how disclosures should be made on websites. Does each sub-page need the disclaimer, and must each page be filed with DOJ within 48 hours of any updates, even to color, font, or layout?
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In this area, the Justice Department has by interpretive guidance come up with creative ways of permitting the influence community to comply with the spirit of the law despite the seemingly rigid statutory language. In letters to new registrants sent by the FARA unit in 2019, DOJ noted that “acceptable methods for placing a conspicuous label on a website include placing the required language visibly on the home page, as a running header or footer on a website home page, or within a website ‘About Us’ page.” DOJ also noted that on social media, such as Twitter or Facebook, the label could be placed on the “social media access page…, [or] within a Facebook or Twitter profile summary…” and that text messages used to disseminate propaganda “shall be marked at its beginning.”
This is all helpful, and demonstrates a serious effort by DOJ to square an old law with the modern world, even where the activity may technically fall outside the language of the statute. (If each tweet constitutes a separate piece of informational material, then the statute would require the label be placed on each one, each time, under a literal reading — an absurd conclusion to draw). So it’s particularly curious that DOJ drew the line where it did.
The public disclosure of residential addresses, particularly where there are legitimate, well-founded safety concerns, doesn’t seem to serve any legitimate public policy ends. And in a hyper-partisan age where doxing leads to violence, it may well put registrants at risk.
The Justice Department has the tools to address this without violating the spirit of the law. It had done so in the past, in this area as well as in less significant ones, and it needs to be able to administer the law in ways that don’t lead to absurd or even dangerous results.
One might hope that prosecutorial discretion would lead to rational results, such as not going after foreign agents who withhold personal information based on legitimate fears for their safety. But that’s a risky bet at a time of increased enforcement of foreign lobbying violations.