Feds Can Pursue Past Foreign Agents Under New Transparency Act; Retroactive Reach Extends 5 Years

The Foreign Agents Transparency Act significantly updates the rules for individuals and firms working for foreign entities by amending the Foreign Agents Registration Act of 1938 (FARA). This legislation clarifies registration duties, grants the Attorney General new power to enforce compliance even after someone stops acting as a foreign agent, and mandates annual public reporting on these enforcement actions. Crucially, these changes apply retroactively, covering anyone who acted as a foreign agent within the five years leading up to the Act's passage.

Tightening the Leash, Even After the Fact

This Act makes a couple of key adjustments to how FARA works. First, it clarifies that the obligation to register covers the entire period someone acts as an agent (Sec. 2), aiming to close potential loopholes. More significantly, Section 3 gives the Attorney General the authority to seek court orders compelling compliance—like filing registration documents or supplements—even if the individual is no longer actively working for the foreign principal when the order is sought. Think of a consultant who advised a foreign company two years ago; under this Act, the Department of Justice could still pursue them for registration details related to that past work, even if the contract ended long ago.

Looking Back: The Five-Year Rewind Button

The most notable feature is the retroactive application. Both the clarified registration duty (Sec. 2) and the extended enforcement power (Sec. 3) apply not just going forward, but also to anyone who acted as an agent of a foreign principal at any point during the five years before this Act became law. This means activities potentially undertaken under a different understanding of FARA requirements could now be subject to enforcement under these new, arguably stricter, standards. This raises questions about how individuals or firms who believed they were compliant under previous interpretations might be affected.

Spotlight on Enforcement: Annual Reports to Congress

To increase oversight, Section 4 requires the Attorney General to submit annual, machine-readable reports to key congressional committees. These reports must detail enforcement actions taken against individuals who acted as foreign agents within the prior five years, including names, reasons for action, and status. While this boosts transparency about how FARA is being enforced, the combination of retroactive application and expanded pursuit powers could create uncertainty for anyone involved in international consulting, lobbying, or public relations, potentially impacting even legitimate activities conducted in the recent past.