Today, I am pleased to introduce a new contributor to Lawfire^®, Ms. Emily Threlkeld.  Emily was selected as a 2026 Center on Law, Ethics and National Security (LENS) Scholar from George Washington School of Law for our annual national security law conference last February.

Emily discusses the Foreign Agents Registration Act (FARA).  As a March 9th Congressional Research Service CRS) report explains:CRS tells us that “foreign agents have registered under FARA for foreign principals in 219 countries, territories, and regions,” and that the agents engaged in a variety of activities (see the CRS chart to the left).

Emily makes some very interesting points in her essay.  She walks us through the history of FARA, noting that it was originally intended to counter Nazi propaganda distribution.  She says:

“While FARA’s relationship to national security has fluctuated over time, its purpose of identifying foreign agents and enhancing public awareness has remained constant throughout its many changes. With a majority of U.S. adults consuming news from social media, FARA’s purpose cannot be effectuated without addressing foreign influence through digital dissemination.”

She concludes that social media has significantly increased the technical difficulty and legal complexity of attribution and labeling, causing her to argue that the realities of the internet age makes FARA “ineffective in addressing the national security threat landscape of today.” 

Here’s Emily

FARA & THE NATIONAL SECURITY THREAT LANDSCAPE IN THE INTERNET AGE

by Emily Threlkeld

I. INTRODUCTION

The Foreign Agents Registration Act (FARA) requires that agents of foreign principals register with the Department of Justice (DOJ) and label informational materials, defined broadly as “prints or in any other form,” disseminated to the U.S. public. Originally enacted to combat Nazi propaganda, FARA aims to protect the U.S. public from foreign influence.

While FARA has an important relationship to national security, its effectiveness has declined due to the increased use of technology to disseminate information, making the application and enforcement of FARA inadequate in addressing the threat landscape of today.

II. FARA AND ITS HISTORICAL PROTECTION OF NATIONAL SECURITY

FARA, as originally enacted, sought to expose foreign influence by identifying foreign agents and making such information public. In 1934, the House of Representatives investigated Nazi propaganda “attack[ing] the principle of the form of government as [was] guaranteed by our Constitution.”

By 1935, the House had uncovered instances of foreign influence, like the reporting of political advice to Germany by a widely-used U.S. public relations firm. The firm’s owner, Ivy L. Lee, advised clients such as John D. Rockefeller and the Pennsylvania Railroad and was so influential that he was considered the “founder of modern public relations.”

In 1938, FARA was signed into law, with its express purpose requiring the registration of foreign agents disseminating propaganda in the U.S. Therefore, FARA’s enactment arose out of a desire to protect the U.S. public’s belief in democracy from foreign influence. Over the next sixty years, FARA was substantially revised in 1942, 1966, and 1995, with each revision reflecting a shift in national security interests.

A.1942: A Period of Heightened Propaganda Concern

After U.S. entry into World War II, FARA was first revised to reflect wartime concerns, and its statutory purpose explicitly linked FARA to the “protect[ion] of the national defense.” The 1942 amendment expanded definitional language to include foreign agents under the direction of a foreign government or political party.

As such, instead of covering one-dimensional agent-principal relationships, the 1942 amendment allowed for FARA to reach an additional layer of actors, reflecting the U.S.’s wartime interest in countering as much influential behavior as possible.

The result was the prosecution of nineteen criminal cases against sixty-one defendants. Because FARA’s main statutory framework encouraged registration, the significant number of prosecutions during a short amount of time underscores how serious of a threat to national security foreign influence was during World War II, especially since the U.S. government not only amended FARA but spent the time and resources to aggressively enforce the registration of foreign agents.

B. 1966: The Rise of Political Advocacy

In contrast, from 1942 to 1966, the DOJ prosecuted twelve criminal cases against twenty-seven defendants, a significant decrease from the World War II era, demonstrating a shift in national security concerns away from foreign propaganda. Furthermore, FARA’s second amendment was spurred not by propaganda concerns but by something seemingly unrelated to national security: sugar. 

In 1960, the Sugar Act was up for renewal, determining which countries would be allotted lucrative sugar import quotas. By 1962, multiple countries were aggressively lobbying U.S. politicians, with a scandal erupting when the extent of the relationship between Dominican agents and the chairman of the House Agriculture Committee was exposed.

As a result, concern shifted from foreign propaganda to foreign political advocacy, as exemplified by the Senate debate of the 1966 FARA amendment, where Senator Fulbright stated, “[T]he place of the old foreign agent has been taken by the professional lobbyists and public opinion manipulators whose object is not [to] subvert the Government but to influence its politics to the satisfaction of his client.”

Consequently, the 1966 FARA amendment focused on “political activity” falling outside diplomacy yet within foreign lobbying, codifying the national security concern of political advocacy.

C. 1995: An Era of Decreased Concern

 The final amendment eliminated “political propaganda” language and allowed some lobbyists to register under the newly passed Lobbying Disclosure Act to avoid registration under FARA.

These changes reflected a further shift away from the traditional concerns of propaganda. From the 1990s to the 2000s, three criminal prosecutions were pursued, signaling the belief that registration without criminal enforcement adequately confronted the national security concerns at the time.

Additionally, the 1993 and 1994 national security strategies leading up to the amendment did not address the threat of foreign influence like their predecessors did, reinforcing that the exclusion of propaganda terminology reflected the changing national security threat landscape of the 1990s.

Therefore, the lack of criminal prosecution, as well as the removal of propaganda language from the statute, indicated FARA’s shift away from a tool used to counteract the national security threat of influence to a law rarely criminally enforced.

III. FARA’S ABILITY TO COMBAT CURRENT NATIONAL SECURITY THREATS

While FARA’s relationship to national security has fluctuated over time, its purpose of identifying foreign agents and enhancing public awareness has remained constant throughout its many changes. With a majority of U.S. adults consuming news from social media, FARA’s purpose cannot be effectuated without addressing foreign influence through digital dissemination.

However, today’s increased use of technology makes attribution and labeling difficult within FARA’s framework at a time when foreign influence is once again an issue of national concern.

Applying FARA to the modern information environment would create constitutional risks, ones that FARA may not survive upon judicial challenge, decreasing FARA’s effectiveness by hampering the DOJ’s ability to encourage and enforce registration.

A. The Challenge of Attribution

With the increased use of social media, identifying foreign agents is a significant challenge, and the difficulty of attribution creates constitutional risk.

Foreign actors can disseminate information without the need to be physically present in the U.S., but applying FARA to conduct outside the U.S. may require an amendment to broaden or clarify that foreign agents need not be located “within the United States” in order to fall under FARA. 

Additionally, foreign agents use tactics such as bots and trolls, third-parties, and shell companies to make attribution more difficult. As such, support from the intelligence community has become increasingly necessary for the level of attribution needed to require registration and criminally enforce FARA.

For example, the FBI investigation into Russian interference in the 2016 U.S. presidential election took nearly two years to complete, and attribution to the Internet Research Agency (IRA) was made possible through the tracking of specific tactics, such as the failure to use shell companies in purchasing advertisements.

Foreign agents will likely continue to adapt their techniques to avoid detection and attribution, increasing the burden on the DOJ and the intelligence community for each investigation. Conversely, the barriers to entry for foreign actors continue to decrease with the use of generative artificial intelligence.

The challenge of attribution on social media is reflected in the types of FARA cases criminally enforced. Since 2017, FARA prosecutions, while increased in number, still focused on the conduct of media outlets and lobbyists rather than informational materials disseminated over social media.

In an era where the U.S. public increasingly relies on social media for news, foreign influence operations no longer focus solely on traditional means of influence. However, applying FARA to materials spread via social media would put the DOJ in the position of choosing whether to criminally enforce failed registrations that are predicated upon a lower level of attributional confidence.

Additionally, FARA could inadvertently be applied to protected domestic actors, opening up an overbreadth constitutional challenge.

FARA has survived facial constitutional challenges, most notably in Peace Information Center v. United States, where the U.S. District Court of the District of Columbia held that there was no violation of the First Amendment, even when the organization disbanded to avoid registration, because FARA did not regulate speech itself but required disclosure for those who act as foreign agents.

That chilling effect, present in Peace Information Center, would be more likely to violate the Constitution today because, without the ability to confidently identify foreign agents, registration could unintentionally be required of purely domestic actors, creating a chilling effect permeating to the U.S. public as a whole.

Currently, the DOJ’s selective prosecution of FARA and its heightened standard for attribution act as a backstop against such constitutional challenges. Extending FARA to include foreign agents acting on social media would increase the volume of potential FARA violators, requiring additional DOJ investigative capacity to ensure that domestic actors are not inadvertently required to register under the statute.    

B. The Challenge of Labeling

 Public awareness of foreign influence is effectuated by FARA through the required maintenance of a public database of all registration statements and the mandated labeling of informational materials.

Because it is unlikely that the average American checks the FARA database regularly, the ability to effectively label materials is crucial. However, the statute fails to provide guidance on how to conspicuously label information on social media, creating a challenge for the application of FARA in the digital age.

Because of the broad definition of informational materials, social media posts likely fall within the statute, but even the most diligent of foreign agents would find it impossible to provide copies of social media posts within the forty-eight hours mandated by the statute.

If FARA was instead interpreted to require only the labeling of account pages, it would still fail to effectuate the purpose of public awareness, as many social media users do not view account pages when consuming posts.

Even if the time and labeling requirements were resolved by proposed amendments, the challenge of attribution means that some social media accounts that have tenuous links to a foreign principal or none of at all could require a label, again creating the risk of an overbreadth constitutional challenge.

Additionally, the Court has indicated that labeling could violate the Constitution if it resulted in the “adverse impact on the distribution of foreign advocacy materials.”

In Meese v. Keene, the Court ruled that the labeling of films did not violate the Constitution because “political propaganda,” still present in FARA at the time, had a “neutral definition” within the statute, mitigating the label’s potential of casting a negative connotation resulting in the regulation of protected speech.

Today, however, public perception of labeling has shifted as social media platforms utilize labeling to draw attention to misinformation on their platforms. Significantly, seventy-four percent of individuals on social media have noticed false content labels affixed to social media posts.

Such widespread attention to labeling on social media could risk the conflation of FARA labels with misinformation labeling, creating a constitutional challenge similar to the one narrowly avoided in Meese. Therefore, the ability of FARA to provide an effective labeling framework has decreased with digital dissemination.

IV. CONCLUSION

FARA has an important relationship to national security, but its effectiveness in combating foreign influence has declined. The increased use of technology makes FARA’s current framework inadequate in identifying foreign agents and making the public aware of foreign influence. Therefore, FARA is ineffective in addressing the national security threat landscape of today. 

About the Author:

Emily Threlkeld is a 2L at The George Washington University Law School, where she is concentrating in National Security and Cybersecurity Law. Originally from Glennville, Georgia, Emily graduated from the University of Georgia in 2021 with a B.A. in International Affairs and a B.S. in Psychology. Prior to law school, she spent three years serving as a middle school teacher through Teach for America. She currently serves on the executive board of GW’s National Security Law Association and is a member of GW’s Journal of Law and Technology. While in law school, she interned for the Superior Court of Georgia for the Atlantic Judicial Circuit, the U.S. District Court for the Southern District of Georgia, the U.S. Department of War’s Military Commissions Defense Organization, and the U.S. Department of Homeland Security. She plans to continue government service upon graduation. 

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University. (See also here).

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!