The Troubles With Designating «Foreign Agents»

May 2024

Ongoing large protests against a law proposal in Georgia that, depending on which side you ask, is aimed at defending Georgia from undue influence of foreign agents or undermining democracy and stifling dissent, are shining a spotlight on how the issue of alleged foreign agents has become contentious not only in Georgia but in various countries. A closer look by the Swiss Institute for Global Affairs (SIGA) shows the manifold problems with designating foreign agents and that things are seldom as black-and-white as often portrayed.

A poster that announced one of many protests in Tbilisi, Georgia, against the proposed law on «transparency of foreign influence», termed «Russian law» by demonstrators. The headline reads «Yes to Europe» in Georgian. (Source: https://transparency.ge/en/post/non-governmental-and-media-organizations-are-suspending-cooperation-government-until-russian)

On practically every day since 15th of April 2024, thousands of people have taken to the streets of Tbilisi, the capital of the small Caucasus republic of Georgia, to protest against a proposed law on «transparency of foreign influence». They call the draft the «Russian law», claiming that it is a copy of a Russian law from 2012 that requires foreign funded organisations in Russia to register as «foreign agents» and is seen as having led to the suppression of independent organisations and media in Russia. Critics of the draft Georgian law, including EU officials and members of European Parliament, further assert that the passing of this law would not be in line with European values and jeopardise Georgia’s EU integration, an objective that has been at the centre of Georgia’s foreign policy for years and is even enshrined in the Georgian constitution.

The Georgian government and members of Georgia’s ruling party, Georgian Dream, who form a majority in parliament, reject all this and insist that the law is necessary to protect Georgia’s sovereignty against undue foreign influence and subversion. They further claim that the law follows the lead of similar existing and planned Western legislations, including a proposed EU directive.

The fact that various other countries, including Western ones, indeed have legislations against foreign agents or influence or are working on such legislation, shows that this issue is broader than the draft law in Georgia that has only once again brought the topic to the forefront.

Scrutinising the Georgian case and existing and proposed legislations in other countries then reveals that the core conundrum is how to counter foreign agents without casting a too wide net. And while pluralistic Western democracies are better equipped to do this, past and present examples show that they are far from infallible and that also liberal views are prone to questionably accuse domestic opponents as foreign agents.

The most prolific rallying cries of protestors in Georgia are «No to Russian Law» and «Yes to Europe»; in reverse, the Georgia’s ruling party repeatedly insists that the contentious proposal is not a Russian law but based on the existing U.S. Foreign Agent Registration Act (FARA) from 1938 and current plans for a EU Directive and a French law on transparency of foreign influence. Neither side’s comparison is fully accurate.

One of the main arguments of protestors is that the text of the proposed Georgian law as well as statements by Georgian officials indicate that it is meant to target Georgian civil society and media that is supported by donors from Western countries and suppress them which would be similar to what happened in Russia. When confronted with Georgian Dream’s claim that the draft law is modelled after similar Western legislation, critics regularly point out that enacted or proposed Western legislation like the U.S. FARA differ from the Georgian draft law, as they are only targeted at activities of agents of adversary foreign powers, not allies.

That the Georgian draft law casts a problematically wide net and would mostly affect organisations supported by Western countries that are official allies of Georgia is indeed true. This derives from the decision to tie the definition of «organizations pursuing the interests of a foreign power» — the term with which Georgia’s ruling party substituted the more contentious «foreign agent» moniker — solely to the criteria of receiving more than 20 percent of the income from a foreign source and makes barely any exemptions. This, in fact, goes beyond the law in Russia, as the Russian law (for an unofficial English translation see here), albeit it can be triggered by any foreign funding (i.e. without any threshold), only applies to organisations that conduct political activities and includes more exemptions than the Georgian draft law. (While the Russian definition of political activities in art. 2 para. 6 is, according to critics, too broad and too vague, it is nonetheless a notable difference to the Georgian approach.)[1]

That said, U.S. FARA and the mentioned proposals for an EU Directive and French legislation define who has to register as a «foreign agent» based on whether or not an organisation or person conducts certain activities for a foreign power, not necessarily whether or not they are funded from abroad (although this can be an important factor). The descriptions of such activities are, however, also broad, meaning that such laws apply to much more cases than often assumed. This holds true despite the fact that such Western legislation stipulates notable exemptions, e.g., under certain conditions an exemption for media organisations in the U.S. FARA or an exemption for activities tied to other EU member state foreseen in the French proposal.

As such, the regularly heard notion that the U.S. FARA only targets potentially harmful activities of agents of adversary powers is wrong. While the history of the adoption of the U.S. FARA indeed indicates that this was the aim, namely to counter propaganda from then Nazi Germany and communists, reality looks quite different. As of 12th of May 2024, 507 agents tied to 727 foreign principals from dozens of countries, including various close U.S. allies, were registered under the U.S. FARA. Based on the current texts of the proposed EU Directive and French proposal, also these legislation will almost certainly face the same problem, i.e. that the regulations will apply to numerous organisations and not only selected few ones conducting suspicious activities. 

Excerpt from the U.S. FARA register as of 12th of May 2024, listing several foreign agents linked to the United Kingdom, one of the closest allies of the United States of America (source: https://efile.fara.gov/ords/fara/f?p=1381:1:14002355677344:::::)

In this context it is important to remember that all these legislations are not aimed at covert foreign agents who, in any event, would never declare their foreign ties, let alone register and who are countered by other legislation against espionage.

In fact, and very much in contrast to laws against espionage, the original idea of all these foreign agent legislation is not to outlaw such foreign agents, but only to expose that they are steered or at least influenced by foreign powers. This is meant to prevent and deter undue hidden influence operations and minimise the impact of alleged foreign influence. Accordingly, the common denominator of all these legislation is that they require foreign agents to register and present themselves as such. However, in practice, the problem is that stipulations to enforce the latter can lead to suppression.

This is exemplified in the current case in Georgia, in which supporters of the contentious draft law assert that the law is only demanding the registration of foreign agents to provide information on who funds them and for what purpose, while critics decry that the law will lead to the shutting down of civil society, non-governmental organisations, and independent media. Again, neither side’s view is fully accurate.

The Georgian draft law in its art. 1 para. 2 stipulates explicitly that a registration as an «organisation pursuing the interests of a foreign power» does not limit the activity of such an organisation, i.e., that the law cannot be used to directly interfere in the activities of such organisations. This stands in clear contrast to the law in Russia, which foresees that the state can, under certain circumstances, force the suspension (art. 32 para. 5 no. 6) of activities of organisations falling under the foreign agent legislation.

That said, fears that the Georgian draft law will lead to the effective suppression of partly foreign funded organisations are, however, not without reason. This derives from the fact that the Georgian draft law could be used to impose fines (art. 9) that numerous Georgian organisations would hardly, if at all be able to pay and, in practice, could force them to shut down. What makes this even more problematic is that the wording of the law suggests that even minor mistakes in the required filing of financial information could trigger comparatively high fines.[2] In view of this and certain statements from members of the ruling party, the concern is that the Georgian government could and would use administrative fines based on technicalities to indirectly suppress the so far quite vibrant environment of independent organisations.

Unsurprisingly, the Georgia government denies this, amongst others arguing that the proposed punishments are more lenient than, for example, sanctions stipulated in the U.S. FARA. This is, to some extent, accurate as the U.S. FARA and mentioned European proposals include significant punishments for infringements that, at times, go much beyond the contentious Georgian proposal. For example, the U.S. FARA (§ 618 (2)) and the French proposal (art. 18.15) include, contrary to the Georgian draft, the punishment of imprisonment of up to several years. In view of all the above, Georgian Dream officials therefore often rhetorically ask why, if such legislation is allowed in the United States of America and Europe, it is opposed by Western countries when it is proposed in Georgia.

Although the latter can to some extent be explained by legal shortcomings of the current draft, including the ones mentioned above, the main argument is another one: namely that established democracies with a strong tradition of rule of law can and do responsibly and proportionally implement such legislation in a differentiated manner and should do so to protect their systems, while authoritarian regimes or democracies that are in danger to drift into authoritarian patterns are not and misuse such legislation to suppress opposition. While this is undoubtedly valid, it is to some extent a fallacy as past and present examples indicate that even liberal democracies with strong rule of law are not as good at implementing such legislation as often perceived and that such laws regularly lead to problematically obscuring domestic issues as being instigated from abroad. 

The U.S. FARA is a case in point for this. While its original intentions, the defence of democracy and freedom against propaganda from fascist and communist totalitarian regimes, were noble, the act was, at various points in time and whether by design or understandable but misguided fear, used for questionable persecutions, with the anti-communist witch hunts during the McCarthy era in the 1950s arguably being the widest known examples. That such problems have not disappeared is shown by the fact that the U.S. FARA has, in the wake of the U.S. presidential election in November 2016 and allegations of Russian interference in it, experienced a revival with various more than questionable demands for and enforcements of registrations (for more details see e.g. this article aptly titled «Fixing the FARA Mess»).

This is all the more problematic as talks about foreign agents can swiftly lead to obscuring domestic issues, whether deliberately or not, as being instigated by sinister foreign forces. While during the Cold War there were indeed some Soviet agents at work, in various other instances the U.S. FARA was used against Americans who only pursued legitimate domestic activities for civil and workers’ rights but were misrepresented as communist agitators. Similarly, while there has been evidence for some undue Russian meddling in U.S. politics in recent years, accusations that some elected U.S. politicians are influenced by Russia have reached more than questionable and democratically outright dangerous degrees (for details, see e.g. this article).

This problem of obscuring domestic issues with cries about foreign agents can also be seen in the current situation in Georgia, where it — notably — goes both ways.

Most of the organisations that the contentious Georgian draft law would affect are run by Georgians who do what they do, including at times militantly criticising the Georgian government, to address domestic problems, believing that this is in the best interest of the Georgian population — not some foreign donors. While the government or anyone else can of course disagree with and call out such activities or demand more transparency, assuming that all foreign-funded organisations pursue interest of foreign powers, as the contentious law proposal does, questionably denies the domestic agenda of most such organisations.

Similarly, while it is the right of protestors and critics to be worried about and oppose the current trajectory of the Georgian government, especially given recent disturbing intimidations of protestors, decrying members of parliament and government representatives as Russian agents or «slaves» because the contentious law purportedly is a copy of a Russian law (as mentioned above, it is not), Georgian Dream founder and alleged éminence grise of the Georgian government, billionaire Bidzina Ivanishvili, has made his fortune in Russia, and/or some other circumstantial claims, is not only not constructive but as dubious as seeing every Western-funded non-governmental organisation and media outlet as a Western agent. Talks with supporters of the law rather indicate that Georgian Dream representatives and voters indeed see their Georgian identity and traditional values threatened and in need of safeguards like the controversial draft law and are not implementing any subversive Russian plot.[3] If this is seen as wrong or detrimental to Georgia, it should be addressed on a domestic level and by recognising these as Georgian concerns, not by framing them as Russian conspiracies and calling for EU sanctions, as demonstrators and members of European Parliament do, thereby ironically mirroring the playbook of the foreign agent law that they abhor.

The latter is all the more the case, as Georgian Dream is not just arbitrarily in a position to push the contentious law through but because the party has won a parliamentary majority (while the result of the last parliamentary elections in 2020 have been hotly contested, the Office for Democratic Institutions and Human Rights of the Organisation for Security and Co-Operation in Europe (OSCE) concluded that these elections were, despite problems, «competitive» and that «overall, fundamental freedoms were respected»). That Georgian Dream is indeed the by far strongest party in Georgia is also confirmed by independent surveys as recent as autumn 2023. Arguing that there has been a tidal change due to the latest controversies surrounding the contentious law is not only speculative but open to question. This derives from the fact that the cited latest survey indicating continuing large support for Georgian Dream was conducted right at a time when the Georgian Dream led government had accused foreign-funded non-governmental organisations and their Western donors of plotting a coup d’état in Georgia and there have been public discussions that this might threaten Georgia’s path towards the EU — which means that Georgian Dream’s attitude and public statements were, at the time of the survey, not much different from now.

As such, while it cannot and should not be discounted that the at times tens of thousands of protestors on Tbilisi’s streets do show that the Georgian government is being challenged by a lot of Georgians and a survey that was conducted after the controversial foreign agent law was tabled for the first time in early 2023 suggests that a slight majority of Georgians is against the law, one should not forget that the party is apparently still supported by a very substantial numbers of Georgians and is a democratically elected government. 

Demonstrators in front of Georgia’s parliament on 15th of April 2024, the first day of protests that are still ongoing on almost daily basis (Franz J. Marty, 15th of April 2024)

In view of all the above, past and current experiences in various contexts indicate that even well-meant measures to defend against foreign agents often lead to hardening fronts, where one side — be it a government or opposition force — sees itself as the only righteous one and denies others having differing views and agendas that are their own and not caused by foreign subversion. And while liberal governments and forces are less prone to fall for such misconceptions, they are far from immune to this. Realising and being conscious of this is therefore crucial, all the more in current times with increasing polarisations and calls for legislations against foreign subversion, especially in Europe and regarding views that contradict one’s own convictions.

This does not mean to deny or ignore existing foreign subversion, but only to stop seeing foreign agents everywhere and swiftly framing differing views as being the result of foreign influence operations. Instead, such problems should be tackled more soberly and as the domestic issues they in most cases are.

Franz J. Marty

[1] That Georgia’s ruling party indeed wants to have such a wide net as in the current proposal is highly questionable and probably an oversight that, given the heated discussion, has not been realised. Statements from representatives of Georgia’s ruling party strongly suggest that they only want to apply the law to organisations with political activities and media and not to any organisation. This also makes practical sense, as the ruling party can hardly be interested in registering and controlling small unpolitical organisations whose activities are beyond any doubt benign, as, for example, assistance for disabled people or a shelter for stray dogs, let alone want to have to use state budget for the administrative expenses that this would cause (art. 4 para. 5 of the draft law explicitly states that affected organisations do not have to cover the costs for being registered).

[2] The current text of the Georgian draft law indicates that any mistake could immediately trigger a fixed fine of 10’000 Georgian Lari (about 3’500 €), 20’000 Georgian Lari (about 7’000 €), or 25’000 Georgian Lari (about 8’750 €) respectively depending on the infringement. These are considerable amounts for Georgian standards where e.g., regular salaries are measured in a few thousands, if not only hundreds of Lari. If the amount of these fines is by design and not mistake, it would, with almost certainty, be unconstitutional as imposing a high fine independent of the severity of the infringement would stand in conflict with the necessity of proportionality.

[3] Georgian Dream has, in fact, repeatedly iterated that their goal is for Georgia to obtain EU membership and continues to do so. While this is regularly displayed as mere subterfuge of the party to not loose support from the vast part of the Georgian population that is in favour of an integration into the EU, statements of Georgian Dream members rather indicate that they are convinced that they can continue their current course and will nonetheless eventually be accepted as an EU member. The speaker of the Georgian parliament expressed this more or less explicitly by citing past examples where the EU set conditions saying that they are red lines for obtaining EU candidate status that Georgia did not fulfil and then nonetheless obtained EU candidate status. That the current situation is, given the harsh criticism of and threats of consequences by EU officials against the contentious foreign agent law, arguably different might be true, but it is also likely that Georgian Dream does not perceive it that way.