New FARA prosecution sweeps in op-ed writing

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Last month, the U.S. Department of Justice charged Sue Mi Terry, an East Asian specialist at the Council on Foreign Relations and former CIA analyst, with conspiracy to violate and failure to register under the Foreign Agents Registration Act. Gregory Craig, the White House counsel during the Obama administration who was acquitted on FARA charges at trial in 2019, wrote extensively about the case in Just Security earlier this month, but there are a few factual allegations potentially of interest to readers of this newsletter.

First, what is FARA? In short, it’s a law dating back to shortly before World War II that was originally meant to counter Nazi propaganda in the U.S. by requiring propagandists to register with the government. It’s been amended since and is widely agreed to be an expansive statute. It requires anyone acting as an “agent of a foreign principal” engaged in “covered activities” to register with the Justice Department.

“Covered activities” include things like spending money on behalf of a foreign principal, representing a foreign principal before a government agency, engaging in “political activities” for a foreign principal, or serving as a public relations counsel or publicity agent for a foreign principal. Foreign principal is broadly defined to include not just foreign governments, but foreign non-governmental entities.

For the press, FARA has always kind of lurked in the background. Certain news organizations with pretty clear foreign ownership or control have registered voluntarily or been forced to register, but it hasn’t been used directly against domestic news organizations. That’s despite the fact that the statute itself has a notoriously narrow carve-out for the news media. The definition of “agent of a foreign principal” does not include news organizations “solely by virtue of any bona fide news or journalistic activities.” What’s “bona fide” is up to the Justice Department’s discretion.

That’s why some of the allegations in the Terry case are notable. Terry is accused of being an unregistered foreign agent for the Republic of Korea, based on organizing meetings with ROK representatives and government officials, disclosing “nonpublic U.S. government information” to ROK intelligence officers (but not espionage), and publishing articles and making media appearances advocating “ROK policy positions.”

On the latter, there is one that really looks a lot like run-of-the-mill opinion reporting. In paragraphs 48 and 49 of the indictment, prosecutors allege that in March 2023, Terry received a call from an ROK foreign ministry official and then texted the official that there were “already many articles written on” ROK-Japan relations. “So for me to write an op ed,” she said, “I need” answers to a series of questions, which she sent. The next day, according to the indictment, the ROK official responded with answers to those questions and Terry then published an op-ed “broadly consistent” with the ROK response. Terry asked the ROK contact if they liked the op-ed and the contact confirmed as much. That’s it. 

In addition, there are a few other passages in the indictment that also focus on media appearances and articles written by Terry. (Notably, part of the Craig case also involved his interactions with the media – in that case, with him as a source.)

None of this is to take a position one way or the other on the Terry case itself. But it’s clear that the text of FARA is expansive, and is broad enough to cover bona fide journalistic conduct. Here, the fact that this was an opinion column isn’t doing that much work; the Justice Department’s theory appears to be that the column advanced the ROK’s preferred policies by being “broadly consistent” with the ROK’s responses to Terry’s questions. If so, that could apply to a journalist doing a straight news story in response to a pitch from an embassy’s press shop.

Finally, it’s important to note that, much like espionage laws, foreign agent registration statutes have been used as instruments of press suppression in repressive countries. That’s not to say FARA has been used that way here. But inherent in its breadth is that threat.

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology and Press Freedom Project Fellow Emily Hockett.