On March 3rd, Sander Reiff Lamb Rosenstein & Birkenstock released detailed comments in response to the Justice Department’s recent proposed changes to the Foreign Agents Registration Act (FARA), including the removal of the word “directly” from the regulations implementing the exemptions at 22 U.S.C §613(d)(1) and (d)(2), several of the proposed changes around technical aspects of FARA’s labeling requirement and Rule 2 opinion process, among others. The full response, authored by Joshua Rosenstein, Joe Birkenstock, Erin Tibe, and Christina Bustos can be found here.

The comments were highlighted by the press shortly after their release in the Friday, March 7th edition of Politico Influence, specifically those related to the replacement of FARA’s current commercial exemption, which protects activity in furtherance of bona fide trade or commerce that does not predominantly serve a foreign interest, with a new “totality of circumstances” test to determine whether an agent’s activity predominantly benefits a foreign or domestic interest:

“‘Rather than providing the actual ‘test,’ however, the proposed language simply lists a set of non-exhaustive factors that may or may not be among those the Department would turn to,’ the law firm Sandler Reiff Lamb Rosenstein & Birkenstock wrote in its comment.

‘If changed in this way the test would no longer operate as any workable test at all, but instead would become more of an invitation for the Department to apply whichever factors it wants, whenever it wants, thus raising — instead of removing — the specter of weaponization of the Act,’ the firm said.”

Find the full article here.