LENS Essay Series: “The Foreign Agents Registration Act: Its Structural Failures and the Case for Reform”   

Today, the newest contribution to the  LENS Essay Series tackles a popular topic these days: the Foreign Agents Registration Act (FARA). Top Duke Law 3L Matt Barry wrestles with the FARA in his essay,  “The Foreign Agents Registration Act: Its Structural Failures and the Case for Reform.”   

As a quick refresher, a March 9th Congressional Research Service (CRS) report about FARA explains:Matt does a deep dive into the Act and comes up with not just a superb analysis, but also specific recommendations to make it more effective as a national security enforcement tool.

Essentially, Matt argues that the Act’s framework is “antiquated” and that “undermines its legitimacy and usefulness as a national security enforcement tool.”  In particular, he contends that it is “ill-suited to address modern foreign digital misinformation.” 

Consequently, he recommends that the “core definitions of ‘agent,’ ‘foreign principal,’ and ‘political activities'” be narrowed. He makes the additional (and interesting!) recommendation that “Congress enact a separate statute tailored to foreign digital misinformation” as he believes “FARA is unlikely to be effectively adapted to the evolving technological landscape.”

FARA is a topic that you’ll see listed by virtually every law firm with a national security law practice area, which is to say, almost every major firm in D.C., and, increasingly, elsewhere.  Matt’s done us a great service, clearly distilling the key aspects of the law, pointing out the issues modern technology poses, and offering practical solutions. 

Again, Matt’s essay is available here, and its abstract is below.

The Abstract:

The Foreign Agents Registration Act (FARA) is one of the oldest national security statutes still in force in the United States. Enacted in 1938 amid growing concern about Nazi propaganda, FARA aims to promote transparency by enabling both the government and the public to identify foreign influence on U.S. policy and public opinion.

The Act requires “agents” of “foreign principals” to register if they engage in covered activities within the United States. Since its passage, FARA has been amended twelve times, with the most comprehensive change occurring in 1966. However, for most of its history, FARA has been underenforced and treated largely as an administrative responsibility. From 1966 to 2015, just seven cases were brought under the Act.

In the wake of Russian interference in the 2016 election, FARA has increasingly become an enforcement priority for the Department of Justice across both Republican and Democratic administrations. However, the Act’s antiquated framework undermines its legitimacy and usefulness as a national security enforcement tool. Its overbreadth and vagueness threaten civil society by sweeping in routine activities and enabling politically influenced enforcement.

At the same time, structural limitations—including its requirement that conduct occur within the United States and the difficulty of proving agency relationships—render it ill-suited to address modern foreign digital misinformation. To better align FARA with its purpose, this paper argues that the core definitions of “agent,” “foreign principal,” and “political activities” should be narrowed. Additionally, it recommends that Congress enact a separate statute tailored to foreign digital misinformation, as FARA is unlikely to be effectively adapted to the evolving technological landscape.

About the Author

Matt Barry (J.D. 2026) is a 3L at Duke University School of Law. Originally from Silver Spring, Maryland, he graduated from Oberlin College in 2021 where he double majored in Politics and Law & Society, minored in Hispanic Studies, and competed on the varsity lacrosse team. At Duke, Matt is the Managing Editor of the Duke Journal of Constitutional Law & Public Policy, a research assistant for the LENS Center, and a member of the Moot Court Board. During his 1L summer, he interned in the Appellate Division of the United States Attorney’s Office for the Eastern District of North Carolina. Following graduation, Matt will begin his legal career at Gibson Dunn in Washington DC.

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