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Election Interference May Trigger Foreign Media to Increase Registrations Under FARA

As previously noted by the V&E Report, enforcement of the Foreign Agents Registration Act (“FARA”) is on the rise due to recent concerns about covert foreign influence in U.S. politics and elections, and one industry has been the focus of significant interest by authorities: foreign media. Foreign-based news outlets have received increased scrutiny after U.S. intelligence agencies reported that Russian media were involved in a scheme to interfere in the 2016 presidential election. Since then, lawmakers and the U.S. Department of Justice (“DOJ” or “the Department”) have pressured state-owned foreign media outlets operating in the U.S. to register as foreign agents under FARA. While registration may sound like a mere formality, the real world consequences can be significant. Registered outlets have lost press credentials, access, advertisers, and relationships with social media platforms, and have assumed burdensome government reporting requirements. For many, the decision comes down to whether remaining unregistered is worth the risk of a costly investigation and even a prosecution that could result in years in prison.

Background

FARA requires anyone acting as an “agent of a foreign principal” to register with the U.S. Attorney General. However, the law also provides an exemption for news or press services that meet certain qualifications.1 For example, in order to qualify for the exemption, news outlets must conduct “bona fide news or journalistic activities,” must meet certain U.S. ownership requirements, and cannot be “directed, supervised, controlled, subsidized, or financed” by a foreign principal.2 Unfortunately, the exemption is drafted ambiguously and provides little clarity and plenty of ammunition for both sides to argue that registration is, or is not, required.

Recent Pressure on Russian, Chinese and Arab-Financed Media Services

In January 2017, the Director of National Intelligence released a report assessing Russian activities in recent U.S. elections. The report described Russian media outlets, RT (formerly Russia Today) and Sputnik, as being a part of “Russia’s state-run propaganda machine.” Shortly thereafter, the DOJ investigated whether the organizations’ U.S. outlets needed to register as foreign agents under FARA, and pressured them to do so.3 Both RT and Sputnik denied acting as foreign agents but ultimately registered in November 2017.4 RT’s editor in chief summarized the decision in a tweet: “Between a criminal case and registration, we chose the latter.”5

Soon after, in the midst of the escalating trade war between China and the U.S., the government turned its attention to Chinese news outlets. In January 2018, U.S. Senators Marco Rubio and Patrick Leahy, along with others, authored a letter to then U.S. Attorney General Jeff Sessions, urging the Department to require “similar registration from Chinese state-controlled media outlets operating in the U.S.” Although there were no allegations of interference in U.S. elections, the letter claimed that the state-owned outlets were used by their government to “disseminate news and propaganda domestically and internationally.” The letter highlighted how both China and Russia exploit a “glaring asymmetry” by “raising barriers to external political and cultural influence at home while simultaneously taking advantage of the openness of democratic systems abroad.” The letter posited that FARA enforcement was an appropriate countermeasure to protect against those concerns.

In September 2018, the Department ordered two major Chinese state-run media organizations, Xinhua News Agency (“Xinhua”) and China Global Television Network (“CGTN”), to register as foreign agents.6 The DOJ reportedly responded to the senators’ letter by clarifying that “not all state-controlled media would necessarily be required to register as foreign agents, such as those that run news bureaus in the U.S. to report on events for an audience in their home countries.”7 Instead, “[u]nless there is an effort by the state-controlled media organization to use its reporting in the United States to target an audience here for purposes of perception management or to influence U.S. policy, there would probably be no obligation for it to register under FARA.”8

In February 2019, CGTN registered as a foreign agent under FARA “out of an abundance of caution and in the spirit of cooperation with U.S. authorities.”9 In contrast, Xinhua resisted the DOJ’s directive and has not registered. The decision has attracted additional attention from lawmakers, and on January 22, 2020, Congressman Jim Banks of Indiana sent another letter to the DOJ urging the Department to enforce FARA against Xinhua.

Similarly, in June 2019, Senator Charles Grassley and others wrote to the DOJ regarding whether Al Jazeera Media Network (“Al Jazeera”) should register as a foreign agent. The Senators claimed that Al Jazeera engaged in political activities by seeking to influence or change U.S. policies through its programming, and that it did so as an agent of the Qatari government. Al Jazeera has so far not registered, arguing that it does not need to because it is not owned or controlled by the Qatari government and does not reflect any government viewpoint.10 The network compared itself to other organizations that receive public funding but operate with editorial independence, like the BBC, CBC, and Deutsche Welle.

Registration Efforts Outside FARA

Lawmakers have taken additional efforts beyond FARA to attempt to force foreign media outlets to disclose their relationship with foreign governments. The John S. McCain National Defense Authorization Act (“NDAA”) for fiscal year 2019 includes provisions specifically aimed at media outlets that would otherwise be exempt under FARA. Section 1085 of the NDAA requires any foreign media outlet operating in the U.S. that would qualify as the agent of a foreign principal under FARA, if not for the exception for press organizations, to register with the FCC every six months and describe its relationship to its foreign principal. However, as of the FCC’s most recent report from October 2019, only two entities have registered pursuant to the NDAA.

Even more recently, on February 18, 2020, the State Department designated five Chinese news organizations, including Xinhua and CGTN, as “foreign diplomatic missions” under the Foreign Missions Act. They now are required to report information, such as employee names and property holdings, to the State Department.11

What This Means For You

The upcoming 2020 elections will likely bring heightened attention on foreign influence on U.S. elections and policy, and foreign-owned media outlets should take notice. While criminal cases have yet to be brought against foreign news outlets, DOJ has shown a renewed interest in the statute, securing numerous guilty pleas and even indicting a former White House Counsel for alleged violations. Beyond investigations and criminal prosecution, the decision to register or not can have significant ramifications for a media organization. Registering may affect the way a media outlet is perceived by the public and could jeopardize important relationships. But remaining unregistered may attract even more unwanted attention from lawmakers and enforcement officials. Foreign media outlets previously could delay the decision whether to register, but it seems the issue can be avoided no longer. Beyond FARA, officials are increasingly seeking ways to force media outlets to reveal the details of their relationships, ownership or control by foreign governments. Foreign governments and media networks would be wise to pay attention to these developments and seek counsel to determine whether registering under FARA, or taking action pursuant to other laws, is advisable, or face the consequences.

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1 22 U.S.C. § 611(d), available online at https://www.justice.gov/nsd-fara/fara-index-and-act#611d

2 Id.

3 Jack Stubbs & Ginger Gibson, Russia’s RT America Registers as ‘Foreign Agent’ in U.S., Reuters (Nov. 13, 2017), https://www.reuters.com/article/us-russia-usa-media-restrictions-rt/russias-rt-america-registers-as-foreign-agent-in-u-s-idUSKBN1DD25B.

4 Id.

5 Id.

6 Kate O’Keeffe & Aruna Viswanatha, Justice Department Has Ordered Key Chinese State Media Firms to Register as Foreign Agents, Wall St. J. (Sept. 18, 2018), https://www.wsj.com/articles/justice-department-has-ordered-key-chinese-state-media-firms-to-register-as-foreign-agents-1537296756.

7 Id.

8 Id.

9 Kate O’Keeffe & Aruna Viswanatha, Chinese State Media Giant CGTN Registers as Foreign Agent in U.S., Wall St. J. (Feb. 5, 2019), https://www.wsj.com/articles/chinese-state-media-giant-cgtn-registers-as-foreign-agent-in-u-s-11549387532.

10 Al Jazeera Rebuts Renewed Push for ‘Foreign Agent’ Registration, Al Jazeera (June 20, 2019), https://www.aljazeera.com/news/2019/06/al-jazeera-rebuts-renewed-push-foreign-agent-registration-190620155829236.html.

11 Kate O’Keeffe & Jonathan Cheng, State Department Names Five Chinese Media Outlets as Foreign Diplomatic Missions in U.S., Wall St. J. (Feb. 18, 2020), https://www.wsj.com/articles/state-department-names-five-chinese-media-outlets-as-foreign-diplomatic-missions-in-u-s-11582062002.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.