‘Foreign Agent’ Laws Are a Blueprint for Xenophobia

(Bloomberg Opinion) -- Russian propaganda and spying, increasingly brazen in recent years, as well as China’s “soft power” efforts in the West, have prompted Western nations to step up measures to keep track of so-called “foreign agents” — people and groups working directly or indirectly for foreign governments or entities. Americans, Britons and citizens of other countries enacting such laws should think twice: The rules, while historically often toothless, lend themselves easily to abuse.

The U.S. Foreign Agent Registration Act, or FARA, has existed since 1938, when it was passed so the government could keep an eye on Nazi and Communist propagandists. By the 21st century, it wasn’t exactly dormant — conscientious lobbyists still registered as “foreign agents” — but lax enforcement allowed those who didn’t want to advertise their work for foreign principals to ignore it. Legislative attempts to strengthen FARA have failed to cross the finish line: From the 111th to the 116th Congress (2009-2020), some 90 measures were introduced to amend FARA. Yet after Donald Trump was elected in 2016 and the U.S. intelligence community and media wondered whether Russia tipped the scale in his favor, FARA enforcement appeared to get a new lease on life: Important figures in the Trump campaign, such as Michael Flynn and Paul Manafort, were confronted with evidence of their unregistered activities on behalf of foreign governments, and Russian social media operators — based in Russia, not the U.S. — were indicted for, among other things, failing to declare themselves as “foreign agents.” In November 2017, RT, the Russian propaganda channel, was forced to get its U.S. arm, T&R Productions, registered under FARA. 

I argued back then that, instead of hurting RT's relatively small U.S. operation, the move would bring down a tit-for-tat response on Russian journalists who work for foreign-owned or foreign-funded media organizations. That’s exactly what happened. As RT continued to reach a U.S. audience via YouTube and news aggregators and shrugged off social networks’ voluntary labeling of its material as coming from the Russian government, Russia toughened its own “foreign agent” laws. It designated U.S. government-funded media, such as Radio Liberty and Voice of America, as “media that perform the function of foreign agents.” The news outlets refused to stick the long-winded advisory the government requires on every social network post — the length alone would have made Twitter useless as a distribution channel — and racked up tens of millions of rubles in fines, which give Russian law enforcement a pretext to raid their offices and freeze their accounts. 

Such harassment campaigns tend to acquire a life of their own and metastasize. Late last year, the Russian justice ministry added several specific journalists and activists to its list of “foreign agent media,” and in recent days, two private news websites, Meduza and VTimes, both operating mostly in Russia but with their corporate parents registered in Latvia and the Netherlands, respectively, have also found themselves on the list. For a media organization that tries to sell advertising and talk to government and quasi-government sources in Russia, this blow is crippling, if not fatal: While the government doesn’t explicitly ban them from either activity, both advertisers and sources panic and flee. Meduza has been forced to slash salaries, close its offices and resort to a crowdfunding campaign to fund continued operation — an unimaginable outcome for RT in the U.S. or anywhere in the West.

I still think it was a bad idea for the U.S. to apply FARA to RT, but it’s too late to go back on that decision now even if the Biden administration wanted to — Russia’s repressive machine has no reverse gear, and once its legislative creativity has been unleashed on yet another perceived fifth column, things can only get worse for the victims. Opportunities for reciprocal de-escalation are long gone in this matter as in others; if the U.S. backpedaled, it would hand a symbolic victory to Putin — and, in his eyes, admit that the journalists hurt by the Russian harassment campaign are indeed American (or Latvian, or Dutch) agents. 

Besides, even if the U.S. hadn’t dusted off FARA to use against Russian actors, the Russian crackdown could only have been delayed by a matter of months. Putin appears to have decided on a Soviet-style elimination of any remaining opposition, and his use of “foreign agent” laws as part of that campaign is no more than trolling. Nobody in Moscow is trying too hard to maintain the pretense that the Russian rules, and especially the consequences of their application, mimic those in the U.S., even though that’s the official propaganda line. A multitude of other tools could have been used just as effectively against “extraterritorial” media like Meduza and VTimes. 

The Russian example shows, however, how easy it is for a populist or xenophobic government to turn “foreign agent” laws into a bludgeon against the opposition, whether or not it’s really acting in the interests of a foreign power. Post-Trump, post-Brexit, post freedom-eroding lockdowns, no matter how logical or justified, is it all that hard to imagine Putin-style abuses in the U.S., or in Australia, where FARA-like legislation has existed since 2018, mainly to curb Chinese influence, or in the U.K., where the government plans to pass such legislation, motivated by Russian interference?

The U.S. went seemingly overnight from barely applying FARA to finding a broad range of targets for it, from troll factory masterminds to political operatives. Similarly, the proposed British rules, while seemingly not designed to prevent legitimate activities by “foreign agents,” could easily be used to surveil and harass pro-EU activists in Scotland or Ireland. The West, no matter how well-protected from government overreach it may seem because of its democratic credentials, is by no means above blaming domestic ills on external enemies. “Foreign agent” registration, labeling and reporting requirements, as well as naming (and shaming) them in government disclosures, are convenient tools for such witch hunts in the name of geopolitical competition, protecting democracy or any other pretext politicians might want to cite as they try to export blame.

There are plenty of other ways to stop the most egregious cases of “foreign agency” such as the unabashed lobbying of another country’s interests in a parliament by a former legislator — more regular disclosure, longer “cooling-off” periods for former officials, databases that are more easily searchable. One could argue that if, in the U.S., the Lobbying Disclosure Act can be effectively applied in place of FARA when the lobbyist is hired by a privately-owned company, there’s no need for separate rules to cover such work for the government of a foreign country. Words hurt, labels matter, and “foreign agent” is a label akin to “spy” — yet the second-biggest “foreign principal” in the FARA database maintained by the watchdog group Open Secrets is the government of the Bahamas, which outspends China’s CCTV simply to promote its country to Americans as a tourist destination.

It’s difficult to see why a foreign source of income should, on some level, be construed as evidence of disloyalty if nothing illegal is done to earn that income. Too many people, like Putin, believe all foreign money is suspect and taking it is akin to treason. There’s no reason for legislators to feed that sentiment if no other laws are being broken. The U.K. drafters of “foreign agent” rules argue that a FARA-like registration system can help spot espionage or disinformation operations early — but they can hardly expect malicious actors to register first and then start weaving their spider webs; like Putin’s Justice Ministry, they’ll need to be proactive in spotting the foreign puppets.

Stressing the “foreignness” of malice was common practice in 1938, when FARA was adopted. Then the biggest xenophobes lost a war; its victors ought to be more skeptical about reverting to that ugly era’s notions.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Leonid Bershidsky is a member of the Bloomberg News Automation team based in Berlin. He was previously Bloomberg Opinion's Europe columnist. He recently authored a Russian translation of George Orwell's "1984."

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