Think Tanks May Need to Rethink FARA Registration

By: Derrick Kyle, Senior Associate & Alex Dieter, Law Clerk
Date: 10/23/2022

When considering who must register under the Foreign Agents Registration Act (“FARA” or “the Act”), one normally thinks of individuals, law firms, or marketing firms, the typical kinds of agents that must register for lobbying or image-laundering activities on behalf of foreign persons.

But two advisory opinions released earlier this year add another type of entity to the list: so-called “think tanks.” The advisory opinions, while partially redacted, provide valuable guidance on the status of “research and consulting” firms, as they are described in the opinions, with regard to FARA.

FARA and Advisory Opinions

FARA is a federal disclosure requirement law that aims to combat covert foreign influence in the United States by promoting transparency in the political, media, and public relations activities of “agents of foreign principals.”[1] The Act requires certain entities and individuals in the United States that are acting on behalf of foreign principals to (i) register as foreign agents with the U.S. Attorney General, within ten days of becoming an agent, (ii) disclose information related to their foreign representations, including by publicly filing and conspicuously labeling informational material distributed in the United States, and (iii) maintain written records for inspection by U.S. law enforcement authorities.

Importantly, however, the Act also provides numerous exemptions from its registration, disclosure, and recordkeeping requirements. As we’ve discussed previously (in recent articles and podcasts), FARA is experiencing a renaissance in public interest, media coverage, and governmental concern due in large part to a recent surge in enforcement activity from the U.S. Department of Justice (“DOJ”). The FARA Unit in the DOJ’s Counterintelligence and Export Control Section is responsible for the administration and enforcement of FARA.

One responsibility of the FARA Unit is to respond to inquiries concerning DOJ’s enforcement intentions regarding activities that fall under the scope of the Act. According to the regulations implementing FARA, any “present or prospective agent of a foreign principal, or the agent’s attorney, may request from [DOJ] a statement of the present enforcement intentions…under the Act with respect to any presently contemplated activity, course of conduct, expenditure, receipt of money or thing of value, or transaction, and specifically with respect to whether the same requires registration and disclosure pursuant to the Act.”[2] Inquiries must relate to an actual transaction involving agents and principals that have already been disclosed to the Attorney General. In addition, inquiries must be submitted by a party to the transaction (or their attorney), may not only involve past conduct, and must disclose certain information:

  • the identities of the agents and foreign principals involved,
  • the nature of the contemplated activity,
  • a copy of an existing or proposed contract between the agent and principal, and
  • any statutory or regulatory basis for claiming an exemption or exclusion.

In response to an inquiry, the DOJ may issue an advisory opinion. These advisory opinions are often publicly released and redacted to protect the identities of the parties and to serve as guidance to the wider public.

Advisory Opinions on Think Tanks

Think tanks, also referred to as policy institutes or research institutes, encompass a range of entities that are nonprofit, independent of the state, and dedicated to transforming policy problems into appropriate public policies. They generally fill one or more specific roles:

  • to play a mediating function between the government and the public,
  • to identify, articulate, and evaluate current or emerging issues, problems, or proposals; transform ideas and problems into policy issues,
  • to serve as informed and independent voices in policy debates, and
  • to provide a constructive forum for the exchange of ideas and information between key stakeholders in the policy formulation process.[3]

It’s important to note that while the organizations discussed in the recent advisory opinions do not refer to themselves as “think tanks,” given their independent, non-profit status and aims at influencing public policy through research, outreach, and other activities, they can be categorized as such.

In February 2022, DOJ released a batch of FARA advisory opinions that pertained to registration requirements for think tanks, charities, and nonprofits. One opinion, dated October 8, 2021, deals with “an independent, not-for-profit global charitable organization,” described in its 2020 Annual Report as “a public diplomacy organization,” headquartered in a foreign country, established by the foreign government and seeking to promote a better understanding of the foreign country within the international community and to increase friendship and goodwill between the foreign country and the rest of the world through various exchange programs. The organization carries out its mission by extending support to prominent universities outside the foreign country for the establishment of foreign-country studies, professorships, and scholarship; organizing and supporting a variety of performances and exhibitions to introduce that foreign country’s arts and culture to the international community; and organizing international conferences, inviting distinguished and next-generation leaders to the foreign country for general in-country experiences and meetings with foreign-country organizations.[4]

In part because of that organization’s funding structure – it receives funding from the foreign-country government via a passport application tax – and the foreign-country government’s ability to select the chair of the organization, ultimately giving the foreign government control over the organization, DOJ stated that it fell “squarely within FARA’s definition of a foreign agent,” and as such required to register the organization’s operations in the United States.

The DOJ denied that the exemption for “activities in furtherance of bona fide religious, scholastic, academic, or scientific pursuits or of the fine arts” would apply to the organization because it is not applicable to agents engaged in “political activities.” For the exemption to apply, the activity performed on behalf of the foreign principal must be limited to enumerated pursuits (i.e., religious, scholastic, academic, scientific, or fine arts). Statements in the organization’s 2020 Annual Report and on its website describing itself as a public diplomacy organization aiming to engender friendship around the world with the foreign country, including through the influence of public opinion toward the foreign country, belie the exemption.

In August 2022, DOJ released another advisory opinion,[5] dated April 12, 2022, pertaining to whether a think tank organization should register under FARA. The organization described itself as “a sole-proprietor research and consulting firm” (the “Research Firm”), contracting with two foreign principals, and potentially contracting with a foreign government. The advisory opinion describes the three scenarios.

“Foreign principal 1” (“FP1”) is a consortium between a foreign government, its sole funder, and six non-governmental organizations, some of which are U.S.-based. The Research Firm participates in FP1’s events, authors or co-authors articles and reports with them, and participates in FP1’s partnership meetings. The Research Firm is in discussion to hold events with U.S. Government officials.

“Foreign principal 2” (“FP2”) is a non-profit research and training organization, based in a foreign country with diverse funders that include governments (including two U.S. government agencies), charitable organizations, international organizations, universities, and companies. The Research Firm has contracted to facilitate meetings and new partnerships between FP2 and U.S. Government officials, including attending meetings on behalf of FP2.

Lastly, the opinion states that the Research Firm has proposed to write a study regarding national security for a foreign government, to “strengthen the bilateral exchange with the USA and … foster interdisciplinary cooperation.”

April 12, 2022, advisory opinion cites congressional intent “as reflected in the legislative history to the 1966 FARA Amendments,” in support of the proposition that “a ‘political consultant’ would not be required to register as an agent unless he engaged in political activities, as defined, for his foreign principal.”[6] DOJ concluded that, under FARA’s definitions of “political consultant”[7] and “political activities,”[8] the Research Firm engaged in political activities “on behalf of and for the benefit of each of its foreign principals.”[9]

In the case of FP1, the contract between the agent and foreign principal specifically provided that the Research Firm would support outreach activities directed toward U.S. policymakers and the defense community. As to FP2, the Research Firm agreed to facilitate connections between U.S. officials intended to foster bilateral exchange and cooperation between the U.S. and foreign governments. All of these constitute political activities in that their ultimate goal is to “influence any agency or official of the United States” regarding “the domestic or foreign policy of the United States or with reference to the political or public interest, policies, or relations of a government of a foreign country or foreign political party.” For all three scenarios, the DOJ concluded that the Research Firm should register under FARA.


One major takeaway from October 8, 2021, advisory opinion can be drawn from the fact that DOJ relied on publicly available reports and website information from the organization to give context to the facts asserted in the request for an advisory opinion. Clearly, the DOJ will not hesitate to look at a potential foreign agent’s activities in context, considering as a whole whether the party should register.

Under both advisory opinions, fostering connections, making introductions both in the United States and abroad, hosting meetings between foreign and U.S. government parties, and authoring reports or studies – all of which seem fairly innocuous activities frequently undertaken by think tanks or similar organizations, particularly in Washington, D.C., where U.S. or foreign government officials may be present – were construed as political activities under FARA, thus requiring the organization to register or face costly monetary penalties.


FARA presents a complex challenge for people and organizations engaged in a variety of activities related to foreign parties, with serious consequences if not handled correctly. If you have any questions about FARA, please do not hesitate to reach out to the team at Torres Trade Law.


[1] The FARA statute, as amended, is codified at 22 U.S.C. §§ 611-621. The regulations implementing FARA appear at 28 C.F.R. §§ 5.1-5.1101.

[2] 28 C.F.R. § 5.2.  

[3] James G. McGann & R. Kent Weaver, Think Tanks and Civil Societies in a Time of Change, 3 (2002) available at

[4] U.S. Dept. of Justice, National Security Division, “Re: Request for an Advisory Opinion Pursuant to 28 C.F.R. § 5.2” (Oct. 8, 2021), available at

[5] U.S. Dept. of Justice, National Security Division, “Re: [Company] Request for an Advisory Opinion Pursuant to 28 C.F.R. § 5.2” (Apr. 12, 2022), available at

[6] Id. at 3 (citing H.R. Rep. No. 89-1470 at 7; S. Rep. No. 89-143 at 9).

[7] Defined at 22 U.S.C. § 611(p) as “any person who engages in informing or advising any other person with reference to the domestic or foreign policies of the United States or the political or public interest, policies, or relations of a foreign country or of a foreign political party.”

[8] Defined at 22 U.S.C. § 611(o) as “any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.”

[9] U.S. Dept. of Justice, National Security Division, “Re: [Company] Request for an Advisory Opinion Pursuant to 28 C.F.R. § 5.2,” at 3 (Apr. 12, 2022), available at