How Far Will FARA Go? The Foreign Agents Registration Act and the Criminalization of Global Human Rights Advocacy

Abstract: The Foreign Agents Registration Act (FARA) was enacted and enforced during World War II to protect the American public from foreign propaganda, especially from the Nazi party. Following the war, FARA was scarcely used for over half a century. But in the past five years, there has been a significant uptick in FARA enforcement, particularly against major political personalities. The revival of FARA has led many legislators and scholars to advocate for expansions of FARA’s scope and enforcement mechanisms in the name of national security. But most have failed to acknowledge the risk and likelihood of politicized enforcement. The United States government is positioned to use FARA to harass organizations critical of the United States—in particular, human rights organizations (HROs) that take politically unpopular positions. The forced association of FARA’s registration requirements could jeopardize HROs’ ability to engage in advocacy by fostering public distrust and social stigma. Accordingly, politicized FARA enforcement against such organizations violates the First Amendment. This Comment advises human rights organizations that have been subject to a politicized FARA enforcement action on how to best attack it and urges Congress to amend FARA to protect these groups and their interests.