Taking FARA Too Far

Attorney General William Barr. Photo by Tia Dufour, courtesy The White House.

Transparency is generally seen as a good thing, and transparency is the principle behind the Foreign Agents Registration Act. But a newly aggressive Justice Department is pushing FARA way too far.

Attorney General William Barr has not had much luck getting policymakers to pay attention to his demand that technology companies – notably Apple – be forced to create mechanisms through which law enforcement can access encrypted information. So Barr recently resorted to dark but vague threats to invoke FARA against American firms and executives who, in the department’s view, are carrying water for foreign commercial interests while serving their own.

“You should be alert to how you might be used, and how your efforts on behalf of a foreign company or government could implicate the Foreign Agents Registration Act,” Barr warned tech executives in a speech last month. “FARA does not prohibit any speech or conduct. But it does require those who are acting as the ‘agents’ of foreign principals to publicly disclose that relationship and their political or other similar activities by registering with the Justice Department, allowing the audience to take into account the origin of the speech when evaluating its credibility.”

Although he also mentioned Google, Microsoft and Yahoo as examples of companies “all too willing to collaborate” with the Chinese Communist Party, Barr focused on Apple. He criticized Apple’s decision to pull privacy apps and the Quartz news service from distribution in China. Apple has also agreed to store iCloud data of Chinese users on servers in that country, where it could be subject to the legal processes of that country’s opaque and politically controlled courts.

“Do you think when Apple sells phones in China that Apple phones in China are impervious to penetration by Chinese authorities?” Barr said, according to Politico. “They wouldn’t be sold if they were impervious to Chinese authorities. What we’ve asked for is when we have a warrant from a court, that we should be able to get into those cell phones. That’s the double standard that has been emerging among American tech companies.”

Barr has a legitimate point – and he is not the first to raise it – in citing Apple’s presumed willingness to compromise its hardline defense of user privacy to maintain access to Chinese manufacturing and markets. Most other technology companies have made similar compromises. Those that haven’t generally have ended up on the wrong side of the Great Firewall. But even the biggest companies are no match for large sovereign governments. Until the recent toughening of Washington’s stance toward Beijing, those tech companies had been largely left to fend for themselves.

Now Barr is threatening them with possible FARA prosecution if, for example, they advocate against the administration’s trade or sanctions policies. His theory is that such advocacy could plausibly make them foreign agents. A more reasonable view is that they are fiduciaries of their largely American shareholders and employees.

In fact, Barr is using a notably Chinese tactic when he issues vague threats of enforcement, backed by a broadly worded law that means whatever the people in power says it means at any given time. It is particularly unbecoming that he is deploying FARA as a political weapon, when Barr’s chief claim to fame is that he has otherwise been doing a workmanlike job of regrounding the Justice Department in law after the prior administration heavily politicized it.

This is an object lesson in how an overbroad statute will, sooner or later, be stretched far beyond its original purposes.

FARA’s roots go back to 1938, when lawmakers enacted it to try to flush out pro-Nazi (and later pro-Soviet) propaganda. In the backlash against McCarthyism and postwar anti-communist hysteria, it was updated in the 1960s to focus on lobbying for the economic benefit of foreign principals. For decades, criminal prosecutions were exceedingly rare. Most violators were simply allowed to amend their publicly filed disclosures.

That has changed in the polarized political climate of recent years. FARA provided special counsel Robert Mueller with a handy vehicle to seek prison terms against former Donald Trump campaign chairman Paul Manafort and his deputy Richard Gates for their earlier work on behalf of the Ukrainian government. Mueller’s real aim, of course, was to squeeze them for incriminating information about Trump – information that they apparently lacked. Trump’s Justice Department, in turn, sought last year to prosecute former Obama White House Counsel Gregory Craig; those charges were dismissed.

The problem with laws about lobbying disclosure is that it is not always clear what activity is lobbying for someone else, and what is simple advocacy of a cause with which someone is personally or professionally aligned. This sort of vagueness allows for all sorts of prosecutorial mischief. It also allows for a significant court challenge to the statute itself. This is probably why – despite threats like Barr’s – nobody has sought to invoke the law against a party like Apple, which has the resources and inclination to fight back hard.

Consider the BDS movement: a call for boycotts, divestment and sanctions against Israel. Someone with business connections there who advocates against BDS could conceivably run afoul of FARA. So could someone with business connections in, say, Kuwait, or Saudi Arabia, or the West Bank, for advocating in its favor. It all comes down to the whim of whoever is in charge at Justice at that moment.

If the point of the law is disclosure, why leave the disclosure in the hands of law enforcement? Our candidates file spending reports with the Federal Election Commission, not with Justice, which – as the recent cases illustrate – can have other political motivations.

Prosecutors may think they have found a useful cudgel in FARA. But if they take it too far, it may be taken away altogether.