Duke Law Journal

“Foreign Agents” in an Interconnected World: FARA and the Weaponization of Transparency

Abstract

The Foreign Agents Registration Act (“FARA”) is a sweeping and generally underenforced public-disclosure statute. Enacted in 1938, FARA was used during World War II to target fascist propaganda, but by the 1960s its enforcement had shifted to lobbyists and public-relations firms for foreign governments. After the 2016 presidential election, FARA has gained favor among policymakers and prosecutors as a central tool to respond to a range of foreign influence in U.S. politics, including foreign lobbying, electioneering, and disinformation.

This Article argues that FARA’s breadth creates substantial risk that it will be used in a politicized manner. In the past decade, analogous transparency laws in other countries—often justified by reference to FARA—have been weaponized to target dissenting voices with the stigma and burden of registering as a “foreign agent.” This Article undertakes an analysis of FARA to show how its broad and unclear provisions make FARA susceptible to being similarly used in the United States, especially against nonprofits, the media, and public officials. It examines three cases in which FARA was arguably enforced in a politicized manner, explains why strengthening the Act’s enforcement would likely exacerbate this problem, and discusses the Act’s potential constitutional deficiencies under the Supreme Court’s recent First Amendment jurisprudence.

The Article ends by weighing the merits of using FARA to address different types of foreign influence. It posits that transparency provisions like those in FARA are most appropriate, and on strongest ground, when applied to (1) those who clearly are acting at the direction or control of a foreign government or political party; and (2) when the covered activity involves core democratic processes, such as lobbying or electioneering. It warns that using FARA to target disinformation is unlikely to be effective and presents a high risk of politicized abuse. Based on these insights, it suggests three potential strategies for FARA reform.