Foreign agent

Last updated

A foreign agent is any person or entity actively carrying out the interests of a foreign principal while located in another host country, generally outside the protections offered to those working in their official capacity for a diplomatic mission.

Contents

Foreign agents may be citizens of the host country. In contemporary English, the term has a generally pejorative connotation. A covert foreign agent, also known as a secret agent of a foreign government, may in some countries be presumed to be engaging in espionage.

Legality

Some countries have formal procedures to legalize the activities of foreign agents acting overtly. Laws covering foreign agents vary widely from country to country, and selective enforcement may prevail within countries, based on perceived national interest.

United States

In the United States, the Foreign Agents Registration Act (FARA) created a wide-ranging and detailed definition of "foreign agent". [1] There are three necessary components to be considered as a foreign agent under FARA. First, to be considered as a foreign agent, a legal or natural person must act in a capacity of an agent, representative, employee, servant, or any other capacity, at the order, request, or under the direction or control. The conception of "request" is broad and falls between a command and a plea. Second, the activities must be conducted at the order, request, or under the direction or control of foreign principal or a person whose activities are "directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal". Third, an agent's activities in the United States must include: engaging in political activities (meaning any activity believed or intended to influence the U.S. government or public about U.S. policy or other foreign interests), acting as a publicity agent or political consultant in the interests of the foreign principal, soliciting, collecting, or disbursing money or other things of value in the interests of a foreign principal, or representing the interests of a foreign principal before any agency or official of the U.S. government. The law also contains several exceptions to what activities would lead to classification as a foreign agent. [2] [3]

The text of FARA does not explicitly states whether funding is sufficient to establish agency. There were changing positions regarding this issue, which is also mirrored in the case law. In the first report on FARA to the congress, Attorney General stated that an agent includes a person funded by a foreign principal. The two court rulings in 1943 emphasized that where the foreign principal paid for the specific publications registration of the publisher as an agent could be warranted. [4]

However, in 1980, the court ruled that receiving "bona fide subsidy" from a foreign source does not renders the recipient as a foreign agent unless the foreign direction or control is established. In 1981, in another case, appellate court found that even the identical leadership and the financial connection were not sufficient to grant summery judgement and a full trial was required since mere provision of funds was insufficient and that "[n]o request, order, command, or directive was ever shown". In 2020, National Wildlife Federation was ordered to register as a foreign agent because the grants which it received were linked to specific programs it should have carried out, thus, it fell under "request". Thus, mere funding is not necessary and additional "request, order, command, or directive" is required. For it to be established, it must be proved that the recipient acts not completely independently of the donor, therefore proving additional co-ordination is needed. [5] However, foreign funding still can establish necessary agency where the dependency of an NGO on a particular foreign donor is so high that the donor can prescribe much of the work. This can mean donor requirements for funding and ongoing monitoring of use of funds, which will fall under the "request". The requested action must be clear to both sides. Apart from being generally dependent on donors, a particular level of control needs to be established. Besides, even if donors support specific agendas, a question arises whether concrete actions were requested, and when these specific activities are funded, it is needs to be ascertained when the domestic action ends and when the activity can be described as being on behalf of foreign principal. [6]

Per FARA, the foreign principal must be setting an agenda (not NGOs choosing freely their area of work) and donors must have primary interest in the activities. However, on the other hand, accepting certain requirement can be characterized as nothing more than agreeing with a viewpoint of donor and insufficient to establish agency. Nevertheless, it can be considered that donors exercise considerable influence over a recipient when the foreign funding of an NGO is an economic necessity for it, and it does not really have much of a free choice. Thus, donor's funding policies may warrant the registration of agency. [7]

Therefore, the foreign funding may warrant NGOs to register as agents under FARA. However, the exact threshold of required control leveraged by foreign donors is difficult to properly clarify. Only donor dependency would not be sufficient and a specific relationship between NGO and donor needs to be established. [8]

FARA requires intermediaries to register too, and NGOs can act as "intermediaries" when they receive foreign funding and hire employees. The Second Circuit has ruled that to be considered as intermediary much more control is required than to be considered simply as agent, meaning that substantial amounts of funding need to be proven. The intermediary needs to register only when intermediary is sufficiently bound to the principal. Therefore, NGOs can become intermediaries when they have particularly strong connection to a donor. The financing alone can warrant this when the foreign principal can "make or break" organization because of how large amount NGO's revenue consists of foreign funding. There is no clear threshold, but the proposed amendment in 1990s suggested 50%. Although it was not passed, the wording of FARA suggests majority of finances, i.e. 50%. [9]

The FARA was enacted in 1938 to counter Nazi propaganda. [10] The law is sometimes claimed to be used to target countries out of favor with an administration. [11] In 2021, the American Bar Association (ABA) called for a reform of FARA, including "renam[ing] FARA and otherwise replac[ing] the term 'agent of a foreign principal' with a term that elicits less stigma and causes less confusion". [12]

Russia

Under the Russian foreign agent law, non-governmental organizations, media outlets and private individuals have to designate themselves "foreign agents" in all external communication if they engage in "political activity", a broadly interpreted term, and receive any foreign funding. Specifically, it requires anyone who receives "support" or "influence" from outside Russia to register and declare themselves "foreign agents". [13] The phrase "foreign agent" (Russian: иностранный агент) in Russian has strong associations with Cold War-era espionage.[ citation needed ]

The law was initially likened to FARA, [14] although its scope has since been expanded significantly to include anyone who has received foreign support of any kind or has ever been "affiliated" with foreign actors; [15] registrants are also prohibited from receiving state funding, teaching at state universities, or working with children. [16] Failure to comply is subject to legal consequences. Still, many human rights organizations resisted the requirement and in 2014 the law was amended to authorize the Justice Ministry to register organizations as foreign agents without their consent. [17]

Georgia

In 2023, People's Power and Georgian Dream submitted a draft of a new foreign agent law to the Parliament of Georgia. This caused the 2023 Georgian protests. The bill proposed that all non-governmental organizations and media outlets should disclose sources of their funding and register themselves as "agents of foreign influence" if they receive more than 20% of their funding from abroad. The president of Georgia, Salome Zurabishvili, supported the protesters and said she would veto the bill. [18] [19] [20] The parliament withdrew the bill after protests. [21] [10]

Hungary

Legislation similar to the US Foreign Agents Registration Act had been passed in Hungary. [22] [23] [24] On 13 June 2017, the Hungarian National Assembly adopted the Law No LXXVI of 2017 on the Transparency of Organisations which receive Support from Abroad. The law required "associations and foundations" which receive at least 7,2 million HUF annually from abroad to disclose sources of their funding, register with the court as "an organization receiving foreign funding" and indicate this label on their website and publications. The violations resulted in fines and ultimately revoking of the entity's legal status.

On 18 June 2020, the European Court of Justice ruled that the law violated European Union law by "introduc[ing] discriminatory and unjustified restrictions", violating free movement of capital and other guaranteed rights. [25] [26] The law was revoked in 2021.

Australia

Australia's Foreign Influence Transparency Scheme Act (FITSA), enacted in December 2018, is based explicitly on FARA and was drafted in collaboration with the U.S. Department of Justice. [27] Like its American counterpart, FITSA establishes registration obligations for individuals and entities that undertake certain activities aimed at "political or governmental influence" on behalf of foreign principles. The law imposes a lifetime obligation on former cabinet ministers to register any activity they undertake on behalf of a foreign principal unless an exemption applies. [28]

Canada

Since 2021, Canada has considered implementing a foreign agent registry modeled on the disclosure laws of the U.S. and Australia. [29] As of August 2022, the Senate was considering Bill S-237, An Act to Establish the Foreign Influence Registry, which would publicly name all federal lobbyists acting for "a foreign government, an individual or entity related to a foreign government" and require disclosure of payments and identities of foreign clients, with penalties of up $200,000 in fines and two years’ imprisonment. [30] Unlike FARA, the proposed act emphasizes activities on behalf of governments, with sponsor Leo Housakos of Quebec stating that it would "[expose] those who seek to influence on behalf of foreign regimes" and "countries like" China, Iran and Russia. [30]

European Union

In March 2023, it was reported that the European Commission was working on a foreign agents law which would require commercial and nonprofit organizations around the European Union to reveal non-EU funding pertaining to transactions such as paying for academic study. This law aimed to contain influence of Russia and China and limit the corruption scandals such as Qatargate. A preliminary questionnaire supposed to feed into an impact assessment was sent out to the NGOs on behalf of the European Commission. The legislation is supposed to be modeled on the disclosure laws of the U.S. and Australia. [31]

Ukraine

On 16 January 2014, amid the Euromaidan protests, a group of laws was adopted in Ukraine, which defined a foreign agent as a public association that receives funding from foreign states, foreign and international non-governmental organizations, as well as individuals who are not citizens of Ukraine, and participates in political activities on the territory of Ukraine. According to the law, foreign agents had to be registered, face high scrutiny and additional tax measures. On 2 February 2014, the relevant law was repealed.

Bosnia and Herzegovina

Republika Srpska

Legislation similar to the US Foreign Agents Registration Act has been passed in Republika Srpska. [32]

See also

Related Research Articles

<span class="mw-page-title-main">Power of attorney</span> Legal form of delegation

A power of attorney (POA) or letter of attorney is a written authorization to represent or act on another's behalf in private affairs, business, or some other legal matter. The person authorizing the other to act is the principal, grantor, or donor. The one authorized to act is the agent, attorney, or in some common law jurisdictions, the attorney-in-fact.

Freedom of religion in Mauritania is limited by the Government. The constitution establishes the country as an Islamic republic and decrees that Islam is the religion of its citizens and the State.

The term agent of influence is a pejorative description of persons whose speech or activity is seen as being in the interests of a foreign power, and in some way directed by that power. According to Angelo Codevilla, the work of an agent of influence "can be far more valuable, subtle, and dangerous than that of a mere spy".

<span class="mw-page-title-main">Foreign Agents Registration Act</span> United States law regulating foreign lobbying

The Foreign Agents Registration Act (FARA) is a United States law that imposes public disclosure obligations on persons representing foreign interests. It requires "foreign agents"—defined as individuals or entities engaged in domestic lobbying or advocacy for foreign governments, organizations, or persons —to register with the Department of Justice (DOJ) and disclose their relationship, activities, and related financial compensation.

The National Iranian American Council is a lobbying group widely viewed as the de-facto "Iran Lobby" in Washington, D.C. due to its history of lobbying for stances on behalf of, and aligned with, the Islamic Republic of Iran. NIAC Action PAC is its affiliated political action committee and was formed in 2015.

Laws regulating nonprofit organizations, nonprofit corporations, non-governmental organizations, and voluntary associations vary in different jurisdictions. They all play a critical role in addressing social, economic, and environmental issues. These organizations operate under specific legal frameworks that are regulated by the respective jurisdictions in which they operate.

<span class="mw-page-title-main">Lobbying Disclosure Act of 1995</span> United States law about lobbying

The Lobbying Disclosure Act of 1995 was legislation in the United States aimed at bringing increased accountability to federal lobbying practices in the United States. The law was amended substantially by the Honest Leadership and Open Government Act of 2007. Under provisions which took effect on January 1, 1996, federal lobbyists are required to register with the Clerk of the United States House of Representatives and the Secretary of the United States Senate. Anyone failing to do so is punishable by a civil fine of up to $50,000. The clerk and secretary must refer any acts of non-compliance to the United States Attorney for the District of Columbia.

Indian non-governmental organisations (NGOs) can be set up under various Indian laws.

<span class="mw-page-title-main">Religion in Kyrgyzstan</span>

Islam is the main religion in Kyrgyzstan and the constitution guarantees freedom of religion.

Nepal is a secular state under the Constitution of Nepal 2015, where "secular" means religious, cultural freedoms, including protection of religion and culture handed down from time immemorial.

The China Council for the Promotion of Peaceful National Reunification (CCPPNR) is an umbrella organization, founded in 1988, by the United Front Work Department of the Central Committee of the Chinese Communist Party (CCP) to promote unification between mainland China and Taiwan on terms defined solely by the People's Republic of China. Unification is couched in a one country, two systems framework, though critics categorize it as annexation. According to scholar Anne-Marie Brady, in addition to promoting unification, "the organization also engages in a range of activities which support Chinese foreign policy goals, including block-voting and fund-raising for ethnic Chinese political candidates who agree to support their organization's agenda." The main council oversees over 200 chapters in multiple countries.

<span class="mw-page-title-main">RT America</span> Part of the RT TV network that folded in 2022

RT America was a U.S.-based news channel headquartered in Washington, D.C. Owned by TV Novosti and operated by production company T&R Productions, it was a part of the RT network, a global multilingual television news network based in Moscow and funded by the Russian government. The channel said it reached an audience of 85 million people in the United States, but this figure is disputed. It was distributed through select cable providers, over-the-top services, a live stream through its website, and three low-power digital subchannels. Since the channel's closure, viewers who tune into the cable channel or their live stream are being shown a live feed of an RT International broadcast instead.

<span class="mw-page-title-main">Russian foreign agent law</span> 2012 Russian law

The Russian foreign agent law requires anyone who receives support from outside Russia or is under influence from outside Russia to register and declare themselves as foreign agents. Once registered, they are subject to additional audits and are obliged to mark all their publications with a 24-word disclaimer saying that they are being distributed by a "foreign agent". The phrase "foreign agent" in Russian has strong associations with Cold War-era espionage. The law has been heavily criticized both in Russia and internationally as violating human rights, and as a tool used to suppress civil society and press freedom within Russia, particularly groups opposed to Vladimir Putin.

<span class="mw-page-title-main">Foreign Contribution (Regulation) Act, 2010</span> Act of the Parliament of India

The Foreign Contribution (regulation) Act, 2010 is an act of the Parliament of India, by the 42nd Act of 2010. It is a consolidating act whose scope is to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto. It is designed to correct shortfalls in the predecessor act of 1976. The bill received presidential assent on 26 September 2010.

Foreign funding of NGOs is a controversial issue in some countries. In the late Cold War and afterward, foreign aid tended to be increasingly directed through NGOs, leading to an explosion of NGOs in the Global South reliant on international funding. Some critics of foreign funding of NGOs contend that foreign funding orients recipients toward donor priorities, making them less responsive to the communities they work in.

<i>Foreign Influence Transparency Scheme Act 2018</i> Australian federal statute

The Foreign Influence Transparency Scheme Act 2018 (Cth) (FITSA) is an Australian statute that creates a registration scheme for foreign agents in Australia.

<span class="mw-page-title-main">2024 Georgian parliamentary election</span>

Parliamentary elections are scheduled to be held in Georgia on 26 October 2024.

Christina Maria Pushaw is an American political aide, serving as rapid response director for the 2024 presidential campaign of Ron DeSantis. She is a member of the Republican Party.

<span class="mw-page-title-main">People's Power (Georgia)</span> Political party in Georgia (country)

People's Power is a Georgian political party founded by Georgian MPs Sozar Subari, Mikheil Kavelashvili and Dimitri Khundadze, after they left the ruling Georgian Dream.

<span class="mw-page-title-main">2023–2024 Georgian protests</span> Protests in Georgia

The 2023–2024 Georgian protests are a series of street demonstrations taking place throughout Georgia largely in opposition to a proposed "Law on Transparency of Foreign Influence", which requires non-governmental organizations (NGOs) to register as "agents of foreign influence" or "organizations carrying the interests of a foreign power" and disclose the sources of their income if the funds they receive from abroad amount to more than 20% of their total revenue. The supporters of the bill say it is needed to ensure the transparency of the foreign funding and protect Georgia's sovereignty from the shady foreign influences, while the opponents, including Western countries and the European Union, have criticized the bill, holding that it will stifle democracy and freedom of press in Georgia and comparing it to the Russian foreign agent law.

References

  1. ↑ U.S. Code Title 22 Chapter 11 Subchapter II § 611: Definitions
  2. ↑ "Foreign Agents Registration Act (FARA): A Legal Overview". Congressional Research Service. 9 March 2023. Retrieved 15 May 2024.
  3. ↑ "FARA Index and Act". US Department of Justice. Retrieved 15 May 2024.
  4. ↑ Nägele 2023, pp. 52–53.
  5. ↑ Nägele 2023, p. 54.
  6. ↑ Nägele 2023, pp. 55–56.
  7. ↑ Nägele 2023, p. 56.
  8. ↑ Nägele 2023, p. 57.
  9. ↑ Nägele 2023, pp. 58–60.
  10. 1 2 Megrelidze, Sophiko (10 March 2023). "Georgia drops foreign agents law after massive protests". The Associated Press.
  11. ↑ James Shanahan, Propaganda without propagandists?: six case studies in U.S. propaganda, Hampton Press, 2001, p 108: "The DOJ's search for those who fail to disclose accurately their relationship with foreign groups and enforcement of FARA is selective."
  12. ↑ Laufman, David H.; Sanderson, Matthew T. (July 16, 2021). "FARA: Issues and Recommendations for Reform". Politico. p. 6.
  13. ↑ "Putin Signs Expanded 'Foreign Agents' Law". The Moscow Times . 2022-07-14. Retrieved 2022-07-14.
  14. ↑ "Russia plans to register 'foreign agent' NGOs". the Guardian. 2012-07-02. Retrieved 2022-09-12.
  15. ↑ "Proposed Russian legislation expands 'foreign agent' regulations". Committee to Protect Journalists. 2022-06-28. Retrieved 2022-09-12.
  16. ↑ "Putin Signs Expanded 'Foreign Agents' Law". The Moscow Times. AFP. 2022-07-14. Retrieved 2022-09-12.
  17. ↑ Russia: Government against Rights Groups Human Rights Watch 2015
  18. ↑ "Georgian police use tear gas on protests against 'foreign agents' law". Reuters. March 7, 2023 – via www.reuters.com.
  19. ↑ "Georgians protest against draft law on media, nonprofits". ABC News.
  20. ↑ "Thousands protest at Georgian 'foreign agent' bill". BBC News . 8 March 2022. Retrieved 8 March 2022.
  21. ↑ Kirby, Paul (9 March 2023). "Georgia drops 'foreign agents' law after protests". BBC News.
  22. ↑ "Trybunał Sprawiedliwości UE: Węgierska ustawa o organizacjach pozarządowych otrzymujących wsparcie z zagranicy niezgodna z prawem unijnym". ngo.pl (in Polish). Retrieved 2023-04-12.
  23. ↑ "Ustawa o zagranicznych agentach w Gruzji. Ekspertka: To są mechanizmy z putinowskiej Rosji". gazetapl (in Polish). Retrieved 2023-04-12.
  24. ↑ "Foreign Agent Laws in Hungary and Elsewhere — Content Vs Catchphrase". Hungarian Conservative. 2023-03-17. Retrieved 2023-04-12.
  25. ↑ "CURIA - Documents". curia.europa.eu. Retrieved 2021-05-12.
  26. ↑ "Hungary law on NGOs' foreign funding found to break EU rules". AP NEWS. 18 June 2020. Retrieved 28 July 2020.
  27. ↑ Draffen, Chris; Ng, Yee-Fui (2020). "Foreign Agent Registration Schemes in Australia and the United States: The Scope, Risk and Limitations of Transparency" (PDF). University of New South Wales Law Journal. 43 (4): 1101–1136.
  28. ↑ "ParlInfo - Foreign Influence Transparency Scheme Bill 2018". parlinfo.aph.gov.au. Retrieved 2022-09-12.
  29. ↑ "Foreign Interference – Foreign Agent Registry". www.publicsafety.gc.ca. Public Safety Canada. 2021-08-20. Retrieved 2022-09-12.
  30. 1 2 "Former CSIS honcho says Canadian politicians are on foreign agents' payroll". edmontonsun. Retrieved 2022-09-13.
  31. ↑ "EU 'foreign agents' law spooks NGOs". Politico . Retrieved 2023-08-03.
  32. ↑ "Venice Commission, OSCE, Criticise Bosnian Serbs 'Foreign Agents' Bill". Balkan Insight . Retrieved 2023-08-03.

Sources

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.