Tenet Media Indictment: The Foreign Agent Registration Act and the Crisis of Trust
“Ukraine is the greatest threat to this nation and the world!” conservative influencer Tim Pool trembled on his podcast Timcast.[1] A Department of Justice (DOJ) indictment which followed soon after shows Pool was connected to a complex disinformation scheme.[2] U.S. authorities traced a long line of contracts worth millions, thousands of videos, and a thick web of lies to a small corner in Moscow.[3] The indictment alleges that a team of employees from the Kremlin-owned broadcast RT (formerly Russia Today) helped create the Tennessee company Tenet Media to divide public opinion in the U.S.[4] The since-deleted YouTube channel once hosted thousands of videos with American influencers taking positions on divisive issues in the U.S.[5]
The indictment charges the Russian masterminds with conspiracy to violate the Foreign Agents Registration Act (FARA).[6] The statute requires agents, the American owners of the company that act on behalf of foreign principals to file with the U.S. government and aims to illuminate rather than eliminate foreign influence.[7] In this case, it was the U.S.-based founders of Tenet Media, working under Russia’s direction, who evaded registration.[8] In contrast, the influencers themselves deny responsibility and the DOJ also reaffirms they are innocent.[9] So far, only the Moscow-based employees have been charged.[10]
In 1938, Congress passed FARA to spotlight the hidden hands conducting Nazi propagandists in the United States.[11] Its broad definition for “agent” transcends common law agency principles, capturing anyone who “acts as an agent…or any person who acts in any other capacity at the order, request, or under the direction of control, of a foreign principal . . . .”[12] A “request,” for example, falls somewhere “between a command and a plea,” and a prosecutor might show this by evidence that the principal singled out the alleged agent for an act.[13] Someone who answers a general call to contribute politically by a foreign group might be a supporter, but not an agent.[14]
FARA’s general purpose is to let Americans know who is and is not working for another country’s government.[15] This assumes that transparency enables the public to make informed choices about interacting with foreign agents. Policing influence by requiring registrations like this rather than proscribing content likely avoids clear First Amendment risks.[16] But since it is commonly accepted that good governance in certain contexts depends on people’s trust in government, FARA’s effectiveness may be tied to trust in addition to awareness since it is aimed at the public.[17] Like COVID-19 measures encouraging the public to wear masks, FARA asks citizens to stay alert when dealing with registered foreign agents.[18] In this way, people’s awareness of who is an agent furthers FARA’s purpose to the extent it meaningfully affects people’s behavior.[19] But crumbling trust in institutions across democracies is likely to impact how receptive Americans are to FARA registrations.[20]
The Tenet Media controversy is the latest example of awareness being insufficient to fulfill FARA’s purpose of stopping foreign influence.[21] Though so far it seems the influencers were not technically acting as agents, they were in fact making videos closely consistent with Russia’s narratives and goals.[22] Despite this, many still suspect that the influencers acted willfully ignorant of the scheme, considering that some of the contracts paid $400 thousand per month for little work.[23] Of course, conveying information paralleling Russian propaganda and relaying it at Russia’s behest are different things.[24]
For now, this author believes it is likely the U.S. will prosecute the Russians, who are still at large.[25] In the meantime, their employer RT has been taunting the U.S.: “Three things are certain in life: death, taxes and RT’s interference in the U.S. elections.”[26]
Footnotes
