Important: DOJ Solicits Public Comments on Possible Regulatory Modifications to Foreign Agents Registration Act
DOJ Issues Advanced Notice of Proposed Rulemaking, Seeks Public Input on Regulatory Changes that would Modernize and Clarify the Scope and Meaning of Foreign Agents Registration Act…
As many of you might be aware, on December 8, 2021 the Department of Justice - National Security Division announced that it is soliciting Public Comments on Possible Regulatory Modifications that would Modernize and Clarify the Scope and Meaning of Foreign Agents Registration Act #FARA
You can submit a public comment via https://www.regulations.gov —at the time of publication this hasn’t been docketed to the Federal Regulations but I suspect the docket will be fully uploaded by the end of this week. Also if you provide public comments you’ll need to specifically reference:
Docket No. NSD 102 and/or RIN 1105-AB67
…otherwise your comment via the Federal Regulations dashboard might not accurately populated to the correct docket, again the DOJ -FARA- ANPRM hasn’t been uploaded to the regulations page but keep in mind you have 60 days to submit a comment —so be on the lookout for the docket to open for public comments…
…issuing an Advanced Notice of Proposed Rulemaking (ANPRM) 1 in the Federal Register to seek public comment to help inform the Department’s decision-making prior to its issuance of a Notice of Proposed Rulemaking (NPRM)… Department is seeking preliminary input from the public on the regulations as a whole and in response to 19 specific questions set forth in the ANPRM. You can pull down the highlighted and red lined copy of the ANPRM via my Scribd Accounf
As many of you already know FARA requires any persons in the United States who are acting as agents of foreign principals and engaged in specified (largely political and lobbying) activities to make per public disclosures of
their relationship with the foreign principal,
any activities, receipts and disbursements in support of those activities.
Disclosure of the required information facilitates evaluation by the government and the American people of the activities of such persons in light of their function as foreign agents.
The act gives the Attorney General the authority to issue regulations, which were last amended in 2007.
FARA exempts for agents of foreign principals, other than agents of foreign governments and foreign political parties, who engage in "lobbying activities" and who register under the LDA.
In no case where a foreign government or foreign political party is the principal beneficiary will the exemption under 22 U.S.C. § 613 (h) be recognized.
18 U.S.C. § 219 is a conflict of interest statute, which makes it a criminal offense for a "public official" of the United States in the executive, legislative, or judicial branches to be or to act as an agent of a foreign principal required to register under FARA.
This statute does not apply to special government employees who register under FARA and obtain certification from the head of the employing agency that such employment is required in the national interest.
18 U.S.C. § 951 requires foreign agents operating under the control of foreign governments or foreign officials, other than diplomats, “to notify the Attorney General before acting” - There is a limited exception for those engaged in legal commercial transactions. Registration under FARA serves as the requisite notification.
18 U.S.C. § 2386 colloquially known as The VOORHIS ACT, which requires registration by certain organizations which engage in political activity, civilian military activity, operate under foreign control, or have as their purpose to overthrow the government by force.
50 U.S.C. § 851 requires registration of persons who have knowledge of or have received instruction or assignment in espionage, counterespionage or sabotage service or tactics of a foreign country or foreign political party.
🌶Spicy-Sidebar🌶 according to some of my mentally unwell stalkers -they’ve repeatedly espoused (ironically without any evidence) that apparently I need to register with FARA because I’m a North Korean” operative or was it “I’m a Russian” and that my arrest is eminent and I’m being paid by numerous foreign governments. Which in of itself is laughable especially when two of my stalkers further espoused that “I’m engaging in tax evasion” -well spoiler unlike some of my stalkers I actually file my taxes and I pay my taxes. Shocked I know…
<insert dramatic eye-roll while simultaneously snort laughing at their mendacity>
I genuinely wish I was joking about their disgusting and racist AF smears by my stalkers, sadly I’m not. These individuals have repeatedly tweeted this as if it’s a fact (you betcha their tweets are archived because between account suspension and the mentally unwell stalkers deleting their lies) — Guess what? Imma gonna make each of them prove that I’m a foreign operative. That I’m being paid by a foreign government or that my December 2020 thread was an “op” and that every other woman who spoke up -somehow we are all being paid.
Which is beyond offensive because my father and brothers are West Point Grads, my other sibling is a foreign service officer, who’s been stationed abroad countless times. My grandfather is buried at Arlington National Cemetery. And by my rough calculations my immediate family members have a collective 75+ years of distinguished and honorable service to our Country. Yet that lie amplified by some on Twitter - you betcha I’m collecting evidence and I’m going to force four individuals to prove their lies. Spoiler they can’t and it’s going to cost them because pretty soon I’m going on the offensive. Thoughts and prayers to my stalkers. Apologize I momentarily digressed - because larpers gotta larp and grifters gotta keep their grift up. Now where was I? Oh that’s right FARA & DOJ
DOJ Proposed Changes regarding FARA
So let’s do a deep dive into the DOJ’s proposed new rule making - see DOJ Federal Register submission, found here2
This is relatively important and I’m not sure why some self appointed and purported FARA (faux) intelligence twitter experts failed to elucidate the proposed DOJ notice beyond. Perhaps they are not experts at all or lack the mental discipline to proffer actual facts with actual documents… versus unhinged and unfounded conspiracy theories, of which they traffic in, a lot. I mean grifters gotta grift, amirite?
Important and you should pay attention to what I highlighted and red lined…
As previously noted the Department of Justice is now contemplating amending and updating the FARA regulations to clarify key substantive provisions, such as the attorney and commercial exemptions. Other proposed changes, which the DOJ-Nat-Sec & DOJ-CES currently under consideration “would modernize the regulations to clarify how they apply to social media and electronic filing, among other things.” Did you get that? “apply to social media” activities - looking at you China, Russian and Iran.
Question 1: Should the Department incorporate into its regulations some or all of its guidance addressing the scope of agency, which is currently published as part of the FARA Unit’s FAQs on its website?
If so, which aspects of that guidance should be incorporated?
Should any additional guidance currently included in the FAQs, or any other guidance, be incorporated into the regulations?
Question 2: Should the Department issue new regulations to clarify the meaning of the term “political consultant,” including, for example, by providing that this term is generally limited to those who conduct “political activities,”as defined in 22 U.S.C. §611(o)
FARA Exemptions both individuals and activities
I’d like to draw your attention to pages 5 & 6 of the DOJ’s proposed submission for publication in the Federal Register - so please pay attention. If you read the FARA Act language you’ll note there is some ambiguity as it relates to individuals and direct and indirect activities, again pay close attention to what I highlighted and red lined because this could be hugely significant…
1. Commercial Exemptions
Two of the three exemptions in 22 U.S.C. 613(d) apply to “[a]ny person engaging or agreeing to engage only (1) in private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal; or (2) in other activities not serving predominantly a foreign interest.”
In 28 CFR 5.304(b), the word “private” is defined to include activities on behalf of a foreign principal that is “owned or controlled by a foreign government, so long as the activities do not directly promote the public or political interests of the foreign government.”
And this is also pretty important, so please pay close attention — the current Federal Regulations 28 CFR 5.304(c) only addresses activities on “behalf of state-owned enterprises” -the current CFR does NOT provide any guidance on whether political activities (both direct and indirect) on behalf of other foreign principals may fall within the exemption.
Question 3: Should the Department issue a regulation addressing how 22 U.S.C. 613(d)(2) applies to political activities on behalf of foreign principals other than state-owned enterprises? If so, how should the Department amend the regulation to address when such activities do not serve “predominantly a foreign interest”?
Question 4: Is the language in 28 CFR 5.304(b), (c), which provides that the exemptions in sections 613(d)(1) and (d)(2) do not apply to activities that “directly promote” the public or political interests of a foreign government or political party, sufficiently clear? And does that language appropriately describe the full range of activities that are outside the scope of the exemptions because they promote such interests, including indirectly? Should the language be clarified, and, if so, how?
Question 5:What other changes, if any, should the Department make to the current regulations at 28 CFR 5.304(b) and (c) relating to the exemptions in 22 U.S.C. 613(d)(1) and (2)?
Implications related to Attorneys representing those who might be exempt:
Currently the statutory exemptions (see 22 U.S.C. 613(g)) does offer exemptions for attorneys “[a]ny person qualified to practice law, insofar as he engages or agrees to engage in the legal representation of a disclosed foreign principal before any court of law or any agency of the Government of the United States,” - the proposed new rule making would actually limit those exemptions )whispers wonder if my pet Дмитро́ Васи́льович Фі́рташ -is at all concerned about the proposed new rule making…
—provided that for purposes of the exemption “legal representation does not include attempts to influence or persuade agency personnel or officials other than in the course of judicial proceedings, criminal or civil law enforcement inquiries, investigations, or proceedings, or agency proceedings required by statute or regulation to be conducted on the record.
Nearly all social media companies were launched after the 2003 DOJ-FARA regulation updated…
And lastly Hallel-freaking-ujah -the DOJ FARA is seeking to clarify because the last time 22 U.S.C §614(b) was last amended in 2003. Yes 2003 - that was before nearly all social media companies were created. I know that some of my longtime twitter followers remember my various threads on Twitter openly asking why “information materials” under FARA did not include a “conspicuous statement” (see January 2020 Archived Twitter thread regarding Michael Esposito —I could probably do a deeper waynback machine search but honestly I’m exhausted, Three consecutive days of 19+ hour work day -I’m a tad bit tired) but yes of course I did the research for you concerning the creation and launching of the various major social media platforms. For Example:
…22 U.S.C. 614(b) which currently requires that any informational materials that are or will be disseminated to two or more persons by an agent of a foreign principal contain a “conspicuous statement” that the materials are distributed by an agent of a foreign principal and that additional information is on file with the U.S. Department of Justice.
…Section 614(b) also provides that the “Attorney General may by rule define what constitutes a conspicuous statement.” The regulations implementing this statutory requirement were last amended in 2003 and do not reflect the challenges of labeling informational materials disseminated through various online media platforms.
Also to help you more fully understand what the DOJ-NSD-CES proposed changes to FARA - you’ll want to bookmark this DOJ FARA index webpage and I would also recommend you bookmark this DOJ-FARA cases - the false narrative that the DOJ didn’t enforce FARA until Trump took office strains credulity when you actually read:
Statutorily Required DOJ FARA Reports to Congress:
it has been nearly TWO years, since the Department of Justice last filed the mandatory reports with Congress. The last report to Congress was transmitted on December 31, 2019
Yes some of you might recall my quarterly twitter threads where I repeatedly pointed out that during the Trump Administration - from December 2019 to Jan 2021 the DOJ had repeatedly failed to file the statutorily required bi-annual reports to Congress —so I’m going to remind you that I’m an equal opportunity critic. I don’t care which party is in the White House - the statutes are the statutes and it seems more than odd to me that Congress isn’t (albeit publicly) pressing the DOJ for the 2020 et seq FARA Reports. Mainly because I’m an equal opportunity PITA.
Again should you have any questions please feel free to leave a comment -with the caveat that I might be a tad bit delayed in responding to you -I mean do you have any idea how expensive Belgium BonBons are? <snort>
And because this week is what I’d call hell-week I likely won’t be publishing an article tomorrow (although if I was a sneaky person I could have just published this after midnight on December 8th - but in general I don’t like being an intellectually dishonest tw_t-waffle -so there’s that fun nugget of spicy burn. Also I might update this article because I was kind of burnt out by the time I was half way through and sometimes I like to go back and triple check my research
For those unaware of the process when a Government Agency decides that the currently regulations need to be updated. It’s typically a two step process;
Step 1 - Advanced Notice of Public Rulemaking (ANPRM) -which typically includes a window of opportunity for public input -that public comment window can be between 30 and 90 days
Step 2 - once the public input widow is closed, then the Agency can engage in Notice of Proposed Rulemaking (NPRM)
The DOJ’s Counterintelligence and Export Control Section: - which reads in part:
“The Counterintelligence and Export Control Section (CES) supervises the investigation and prosecution of cases affecting national security, foreign relations, and the export of military and strategic commodities and technology. The Section has executive responsibility for authorizing the prosecution of cases under criminal statutes relating to espionage, sabotage, neutrality, and atomic energy. It provides legal advice to U.S. Attorney's Offices and investigative agencies on all matters within its area of responsibility, which includes 88 federal statutes affecting national security. It also coordinates criminal cases involving the application of the Classified Information Procedures Act. In addition, the Section administers and enforces the Foreign Agents Registration Act of 1938 and related disclosure statutes.”
Thanks. This is really helpful. I knew a little about rule/reg making, but you made it easy to understand. Much appreciated. BTW, go get em!!! They messed with the wrong person. We stand beside you!
FINRA and FARA in the same week! Hoping FARA can rein in some of the crap on social media and broadcast/cable.
Thanks. This is really helpful. I knew a little about rule/reg making, but you made it easy to understand. Much appreciated. BTW, go get em!!! They messed with the wrong person. We stand beside you!