The Media Today

The insidious spread of ‘foreign agent’ laws

October 31, 2023
Radio Free Europe-Radio Liberty editor Alsu Kurmasheva, right, speaks with her lawyer standing in a glass cage in a courtroom in Kazan, Russia, Monday, Oct. 23, 2023. (AP Photo/Vladislav Mikhnevskii)

In May, Alsu Kurmasheva, a journalist with Radio Free Europe/Radio Liberty, a US state-backed international broadcaster, traveled to Kazan in Russia to visit her mother, who was unwell. In early June, Kurmasheva, who is a dual Russian and US citizen, was blocked from leaving the country and both of her passports were confiscated. A few weeks ago, Russian authorities fined her around a hundred US dollars for failing to register her US passport with them. Then, a week or so later, they detained Kurmasheva on more serious charges, under a Russian law aimed at clamping down on so-called “foreign agents.” The authorities published a video of Kurmasheva’s arrest as well as her passport photo and her mother’s address. Last week, a court mandated that she remain in pretrial detention through at least early December.

Kurmasheva’s arrest was the second time that Russia has incarcerated a US journalist this year: Evan Gershkovich, a reporter for the Wall Street Journal, was detained in March and is still in custody awaiting trial. (He marked his thirty-second birthday behind bars last week.) He faces espionage charges that, while clearly bogus, are not entirely without precedent. Kurmasheva’s case, by contrast, appears to mark a chilling and novel expansion of Russia’s weaponization of its foreign agent law. The law already imposed draconian rules on those subjected to it—onerous paperwork, for example, and the duty to add disclaimers to published work—but, according to the rights group OVD-Info, it has never before led to an arrest. Specifically, Kurmasheva has been charged with failing to register herself under the law. Jeffrey Gedmin, RFE/RL’s acting president, told me that the details are “murky, and a bit Kafkaesque.”

In its earliest form, dating to 2012, the foreign agent law targeted NGOs that received foreign funding and were deemed to be engaged in “political activities.” Since then, it has repeatedly grown broader in scope—and RFE/RL has been something of a test case for novel applications. In 2017, the broadcaster and seven of its subsidiary services, along with Voice of America, were tagged as foreign agents after the law was expanded to apply to media organizations; the following year, it was accused of a paperwork violation and hit with a fine that, while relatively small, was still characterized by RFE/RL’s then-president as a “sharp new escalation.” In 2019, the law was expanded again to apply to individual journalists and bloggers. A handful of RFE/RL contributors were soon added to the register. (Today, the broadcaster says that more than thirty of its staff have been individually listed as foreign agents.) In 2021, amid a much broader crackdown on independent media using the law as a primary cudgel, RFE/RL racked up significant fines for hundreds of supposed violations. When it refused to pay, the authorities froze RFE/RL’s local bank accounts, and it began relocating staff as a precautionary measure.

Early last year, RFE/RL suspended its operations inside Russia entirely after tax officials triggered bankruptcy proceedings against it, amid the broader assault on press freedom that followed Russia’s invasion of Ukraine. RFE/RL’s websites remain blocked in Russia, though it continues to cover the country out of Riga and Prague, where Kurmasheva has been based. If convicted, she now faces up to five years in a Russian jail.

Since the war began, Russia has made several updates to the foreign agent law, each more Orwellian-sounding than the last. It now covers people and groups that are deemed to be under “foreign influence,” not just those receiving foreign cash, as well as an expanded definition of “political activities”; earlier this year, Meduza reported that officials were planning to apply the law to third parties who aid foreign agents—willingly or not—while the Moscow Times reported that the authorities already maintain a closed register of people deemed to be “affiliated” with foreign agents. And Maxim Krupskiy, a human-rights defender who is an expert on foreign agent laws, told me that the charges against Kurmasheva could be leveled against anyone who collects Russian military information, for any reason, if they aren’t registered as a foreign agent and the information they collect could theoretically be used by foreigners to harm Russia. “For the Russian authorities, those people are criminals,” Krupskiy said, “just by default.”

Russia’s foreign agent law has rhetorical roots in the country’s Soviet past, and ever since its inception, it has been used to stigmatize opponents and critics of the Kremlin as much as punish them regulatorily. But foreign agent laws are not a uniquely Russian phenomenon. As Krupskiy has written, the oldest example is American, dating to the run-up to World War II. Today, in a fresh era of international tension, similar laws are spreading, particularly within Russia’s traditional sphere of influence, but also farther afield. Increasingly, journalists and news organizations are in their crosshairs. 

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In 1938, the US Congress passed the Foreign Agents Registration Act, or FARA,
in reaction to the spread of Nazi propaganda within the country. John W. McCormack, the congressman who introduced the bill, hoped that it would expose such material “to the pitiless light of publicity,” labeling it “just as the law requires us to label poison.” FARA fell into relative disuse after the war—between 1966 and 2015, the Department of Justice only pursued seven cases under the law—but in the Trump era, it surged back to relevance, thanks in no small part to the Mueller investigation. Around the same time, the Trump administration compelled the Russian state broadcaster RT to register as a foreign agent under FARA; indeed, Russia said that it listed RFE/RL and VOA as a tit-for-tat response. Since last year, prosecutors have charged at least thirty-five people under FARA. Among them: the New Jersey senator Bob Menendez

When Russia first passed its foreign agent law, in 2012, it said that it had been inspired by FARA. In reality, the application of the two laws has been very different. While FARA imposes some bureaucratic reporting requirements on its subjects and can be broadly interpreted—it applies to entities that are seen as taking direction from a “foreign principal”—it doesn’t curb their speech and is subject to independent judicial oversight. Russia’s law, by contrast, is “used to establish a monopoly on the information space,” Krupskiy says. “The more authoritarian the regime in a country, the worse the effect of this legislation on society.” 

Since Russia passed its law, foreign agent laws have also gone into effect in a variety of countries, including China, Uganda, and Australia. In 2017, the autocratic government of Hungary passed a law requiring certain groups to disclose their foreign funding, on pain of closure. (A court eventually ruled that it violated European Union law.) This year alone, the government of Georgia tried to push through a similar law targeting foreign-funded NGOs and media organizations—only to row back after protesters filled the streets chanting “No to the Russian law”—while foreign-agent-type laws are on their way to being approved in Kyrgyzstan, where a once-vibrant climate for press freedom and free speech is increasingly under assault, and the Republika Srpska, a subnational unit of Bosnia and Herzegovina, whose current leader is pro-Russian. (Proponents of the laws there and in Georgia have also cited FARA as a model.)

After Georgia withdrew its foreign agent law, representatives of the EU, which Georgia has tried but so far failed to join, praised the decision and encouraged the country to adopt “pro-EU reforms.” A matter of days later, Politico reported that the bloc was considering introducing a foreign-agent-type law of its own that would “force nongovernmental groups, consultancies and academic institutions to disclose any non-EU funding as part of a crackdown on foreign influence,” not least coming from Russia and China. Hundreds of civil-society groups warned EU leaders that the proposals could have “unintended consequences” and end up undermining the bloc’s democratic self-image abroad. The proposals reportedly remain under consideration.

Various observers have argued that democracies must strike a tricky balance here: between stigmatizing civil-society groups (and the appearance of hypocrisy in doing so) and a real need for transparency at a time when murky cross-border influence campaigns are spreading. Transparency is a “healthy idea,” Krupskiy told me. “The problem is that because of these broad definitions, these terms—in authoritarian countries—could be used for different purposes.”

Foreign agent laws don’t always target journalists specifically. But they often do. Last month, the government of Kazakhstan
established a list of hundreds of people and groups—many of them connected to the media—that is the functional equivalent of Russia’s foreign agent registry, even if those listed in Kazakhstan do not currently face similarly onerous legal restrictions. Appearing on an RFE/RL podcast, Mihra Rittmann, a researcher at Human Rights Watch, described the establishment of the list as a “sneaky” way of “stigmatizing these groups without the scandal” of adopting a full-fledged foreign agent law, in light of the backlash in Georgia. 

The problem, as Rittmann noted, is that Kazakhstan’s list could be the top of a slippery slope—just as proved to be the case with Russia’s 2012 law. At the bottom now lies the arrest of a journalist, and perhaps worse, with foreign agent laws increasingly deputized in an all-out war on dissent. “The Russia of today is not the Russia of a couple of years ago,” Gedmin, the acting president of RFE/RL, told me. “That Russia was not very liberal, not very tolerant, not very inclusive. But it’s harder now. And it seems to get harder month by month, quarter by quarter.”

Other notable stories:

  • Yesterday, Youmna El Sayed, a correspondent in Gaza for Al Jazeera English, said on air that her family had received a phone call from a person claiming to be with the Israeli military who told them to evacuate their neighborhood; Al Jazeera said in a statement that it was “shocked and outraged” by what it described as a “vile threat.” In other news about the war and the media, Rolling Stone said that the Israeli government denied a press credential to its reporter Jesse Rosenfeld, who has covered the Netanyahu administration critically, on the grounds that the magazine is “not a news organization.” And a number of art-world figures said that they would withdraw their participation from industry publications owned by Penske Media after one of them, Artforum, fired its top editor over his decision to publish an open letter calling for “Palestinian liberation.”
  • In recent days, Sam Bankman-Fried, the fallen crypto mogul who stands accused of massive fraud, has testified at his criminal trial in New York. Yesterday, prosecutors repeatedly presented Bankman-Fried with quotes from a round of media interviews that he gave—against the advice of his lawyers—after his crypto exchange collapsed last year, using them to poke holes in his testimony. Teddy Schleifer, who covers billionaires for Puck, noted that Bankman-Fried appeared to be suffering “Death by Media.” “A reminder, dear reader,” Sam Kessler wrote for the crypto-news site Coindesk: “If you’re accused of committing massive fraud and risk facing the rest of your life in prison, you should probably turn down that interview with Good Morning America.”
  • Yesterday afternoon, tech workers at the New York Times staged a half-day strike in protest of the paper’s return-to-office policies, with the union that represents the workers accusing bosses of forcing them to show up to work in person without sufficient prior negotiation. “Workers have been in contract talks with Times management for 15 months, and said the company has been dragging its feet in negotiations while trying to curb their ability to work from home,” Bloomberg’s Josh Eidelson reports. The National Labor Relations Board has said that the Times violated federal law by unilaterally implementing a return-to-office plan; the paper has denied any wrongdoing.
  • In media-jobs news, Christine Romans, a longtime financial journalist at CNN until she departed the network earlier this year, is joining NBC as a senior business correspondent. Elsewhere, Mukhtar M. Ibrahim, the founding CEO of Sahan Journal, a pioneering nonprofit newsroom that covers immigrants and communities of color in Minnesota, is stepping down. And some news from the home front: Margaret Sullivan, the Guardian columnist and prominent media critic, will be the next executive director of the Craig Newmark Center for Journalism Ethics at the Columbia Journalism School. 
  • And Jesús Rodríguez, of the Washington Post, profiled Jake Sherman, the Punchbowl News reporter whose scoops have won him a reputation as “a primary narrator of major events and minor subplots driving the news in Congress.” Sherman “is like the sun rising in the morning,” one Democratic congressional staffer said. “If I want to know what’s happening, which I must do for my job, I need to read Jake Sherman. That’s just the way it is.” (ICYMI, Adam Piore profiled Punchbowl for CJR last summer.)

ICYMI: A tale of four American journalists in Moscow

Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.