May 31, 2023, Covington Alert

The Department of Justice (“DOJ”)’s FARA Unit released several new advisory opinions in recent weeks that interpret the Foreign Agents Registration Act (“FARA”) and its regulations. While the newly published opinions addressed a number of topics, the FARA Unit’s broad reading of the FARA triggers and the jurisdictional scope of the statute are common themes. One particularly noteworthy opinion could have implications for digital media platforms and technology companies that host and support online content for foreign entities, though the opinion provides little actionable guidance.

When acting as an “agent” of a foreign principal, the obligation to register under FARA is triggered when an agent engages—“within the United States”—in “political activities;” represents the interests of a foreign principal before the U.S. government; collects or disburses money on behalf of a foreign principal; or acts as a “public-relations counsel,” “publicity agent,” “information-service employee,” or “political consultant.” These latest advisory opinions shed new light on how the FARA Unit views the scope of these triggers and the jurisdictional requirement that the activities be “within the United States.”

Broad Interpretation of FARA Triggers

The FARA Unit concluded in one recent advisory opinion that a U.S. online platform was required to register under FARA for “creat[ing] a virtual entity presence” for a foreign government agency and “displaying that presence on” the company’s platform. Notably, the online presence was only viewable to other subscribers of the platform and “would contain factual data.” The FARA Unit reasoned that the U.S. company acted as an “information-service employee” and a “publicity agent.” The opinion noted that the services to the foreign government agency also included “tailored support,” although it is not clear from the heavily redacted opinion the extent to which the company was merely hosting the platform versus creating custom content—or if that distinction even mattered in the FARA Unit’s analysis. The opinion offers no explanation of whether the “tailored support” concerned content, targeting, technical support, or something else entirely.

The FARA Unit further advised that FARA’s commercial exemptions do not apply because the foreign government agency did not appear to be engaging in trade or commerce and the activity served “the general public interest of” the foreign government.

The opinion reads the terms “information-service employee” and “publicity agent” very broadly, although the redactions complicate the task of understanding the basis for this reading. In past advisory opinions, the FARA Unit has applied legislative history to cabin an unreasonably broad interpretation of the “political consultant” registration trigger and include only work that also involves “political activities.” But that legislative history does not apply to the sweeping definitions of “information-service employee” and “publicity agent.” Ultimately, the opinion leaves companies that operate online platforms with little clear guidance, though the implications of the opinion are potentially significant. This is yet another example of how redactions and the absence of sufficient detail regarding the request to which the FARA Unit is responding leaves us with advisory opinions that raise questions without providing much in the way of actionable guidance.

Within the United States

Several of the new advisory opinions also offer insights into the FARA Unit’s interpretation of the provision in the statute limiting its scope to activities taking place “within the United States.” The text of the statute limits its coverage to activities within the United States, but the recent opinions reflect DOJ’s much broader interpretation of the statute’s reach.

In one opinion, the FARA Unit focused on the location of the service provider that was providing remote communications training to foreign government officials abroad. The government concluded that the services were “within the United States” even though the services would be delivered to the foreign principal remotely via an online platform because the communications “will originate . . . in the United States.” Similarly, in another opinion, the FARA Unit concluded that this element of the statute was satisfied simply because a company’s online platform, including a foreign principal’s account, was “clearly viewable in the United States,” which would be true for any public website. These opinions follow similar decisions by the FARA Unit, where it stated that registration was required for activities “that would normally require registration” even though those activities were conducted “physically outside the United States at the time of performance or delivery of the service.” Some of these positions are difficult to square with the statutory language, although no party has yet challenged them in court. 

If you have any questions concerning the material discussed in this client alert, please contact the members of our Election and Political Law practice.