Over the past two years, foreign agent legislation has experienced a burst of development. Legislative initiatives on the registration of foreign agents and their analogues have appeared in France, Slovakia, Bulgaria, Republika Srpska, the European Union as a whole, the United Kingdom, Canada, Kyrgyzstan, Georgia, Myanmar, and Turkey. In Russia, following the full-scale invasion of Ukraine, the legislation on foreign agents in force since 2012 was significantly tightened, as reflected in the adoption of a new law, “On control over the activities of persons under foreign influence,” in July 2022. Some of the initiatives listed above have also already gained the force of existing laws, despite negative reactions from international bodies and the public. For example, in Georgia, the process of adopting this legislation was accompanied by large-scale protests, and the very appearance of the law led to the suspension of the country’s integration into the European Union.
Foreign agent laws are a form of foreign influence transparency legislation, and in all jurisdictions they are officially declared as a means of protecting sovereignty and national security against covert foreign interference in domestic and foreign policy, as well as covert foreign influence on public opinion. However, despite the similar rhetoric that accompanies the development of these laws in different countries, as well as the sometimes identical terminology used by lawmakers in the texts of these regulations, it is necessary to distinguish genuine foreign agent laws from their fake analogues, which are discriminatory in nature, have nothing to do with the very idea of transparency, are usually promoted by non-democratic actors and are aimed at suppressing civil society, independent media, and dissenters in general.
The active development of fake laws on foreign agents, such as the Russian and Georgian laws and the Bulgarian draft law, leads to the erosion of the rule of law, creates a real threat to human rights and freedoms, in particular the rights to freedom of speech and freedom of association, and, to a large extent, threatens academic freedom. However, some experts are now concerned about the potential negative consequences for civil society relating not only to the intentionally repressive initiatives on “foreign agents,” but also to those that are declared by proponents in democratic contexts.
The Origins and Abuses of Foreign Agent Laws
The need to develop legislation requiring transparency of foreign influence and, in particular, laws on foreign agents in such jurisdictions as Canada, the United Kingdom, France and the European Union as a whole is primarily due to the increased intensity in recent years of disinformation campaigns, interference in the electoral process, as well as covert support for far-right and nationalist political forces organized by foreign non-democratic actors in these jurisdictions. In Canada, for example, the relevant legislative initiative appeared amid an investigation into Chinese interference in two Canadian federal elections. In Germany, there is growing concern about the links between far-right political forces and Russia. In particular, the far-right party Alternative for Germany (AfD) has been described by many as an instrument of covert Russian influence operations and the promotion of a pro-Kremlin agenda within the country. Similar concerns exist in France about the links between Marine Le Pen’s far-right National Rally party and the Kremlin. It seems that these concerns have not least influenced the introduction of a draft law aimed at preventing foreign interference in France in the National Assembly in February 2024. In December 2023, the European Commission adopted the Defense of Democracy package, the centerpiece of which is a legislative proposal to increase the transparency of representation activities on behalf of third countries aimed at influencing policy, decision-making and democratic space. The authors of the initiative declare this document a tool to counter attempts by authoritarian regimes to exploit societal division and stoke mistrust of established democratic institutions.
Perhaps the main common characteristic of the above legislative initiatives is the attempt to identify those actors—agents—who covertly carry out their activities on the territory of the country in the interests of foreign third parties—principals—at their request and under their control or direction. It is this legal construct that contains the key features of foreign agent activity and reflects the main idea of the classic law on foreign agents—the American FARA, which first appeared in 1938 and in recent years has inspired similar laws on countering foreign interference in different countries of the world.
Non-democratic actors also choose to refer to FARA and exploit the rhetoric of defense of sovereignty to justify their legislative initiatives, developing fake laws on foreign agents—deliberately repressive tools to combat dissenters. The main difference between these laws and their democratic analogues is their complete absence of key features of foreign agent activity. For example, neither the Russian, Georgian nor Bulgarian laws contain even the very notion of the key figure of the beneficiary of foreign agency activities—the foreign principal in whose interests the agent should act. They also do not require any evidence of the potential “agent’s” activity in the interests of a third party and under its direction. This is what gives us the right to call such regulations “fake” laws on foreign agents, since they have nothing to do with ensuring transparency of foreign agent activities.
Non-democratic actors exploit the rhetoric of defense of sovereignty to justify deliberately repressive tools to combat dissenters.
Another important feature of non-democratic legislative initiatives on foreign agents is their strongly discriminatory nature, manifested both in the severe legal restrictions and prohibitions imposed on “foreign agents” and in public smear campaigns designed to stigmatize potential and actual holders of this status. For example, the Russian law, without any evidence of public harm caused by foreign agents, prohibits them, inter alia, from carrying out educational activities for minors and pedagogical activities in state educational organizations, and from receiving funding and other material support from the state. In turn, the Bulgarian draft law, also absent any legal grounds, not only provides for a complete prohibition of the activities of foreign agents in public and private kindergartens, schools, universities, but also a complete ban on the participation of foreign agents in any form in activities that may affect the domestic or foreign policies of the country.
Impact on Academia
As a rule, the main targets of repressive foreign agent laws are non-profit organizations receiving foreign funding and the independent media. It is these actors who are primarily affected by stigmatization and discriminatory legal restrictions. However, since the goal of the proponents of fake foreign agent laws is to suppress any critical voices and discipline society as a whole in order to ensure political loyalty, the consequences of these laws extend far beyond non-profit and journalistic activities to culture, the arts, business, legal services, education, academia, and many other spheres of public life.
Although much less is known about the impact of the above-mentioned legislation on foreign agents on academia compared to the effect it has on the non-profit sector, the available evidence suggests that research institutions, scholars themselves, and the academic environment as a whole are experiencing serious toxic effects as a result of these laws. For example, the authors of the report “Understanding Academic Freedom in the Russian Context,” prepared in 2020 based on the results of a sociological survey, point out that, according to respondents, “the labeling of a research organization as a ‘foreign agent’ has the effect of limiting institutional opportunities to cooperate with government organizations, obtaining information for research, and increasing control over the organization’s activities.” The report also notes that the “foreign agent” status “makes it difficult to find new partners and expand cooperation.”
Foreign agent laws contribute to the flourishing of self-censorship in the academic environment.
The vague legal wording and scholars’ concerns about garnering foreign agent status contribute to the flourishing of self-censorship in the academic environment. The authors of the above-mentioned report emphasize that it is not so much Russian state censorship as self-censorship that “has a greater impact on the choice and wording of research topics, as well as on the dissemination of results.” As examples of self-censorship, the respondents to the study cite, among other things, “refusal to discuss sensitive political topics with students, or to supervise theses on sensitive political issues.” The authors of the report also refer to the refusal of private universities to receive foreign funding from international foundations due to the threat of garnering foreign agent status as an example of self-censorship.
A separate threat to academic freedom in the context of international cooperation in relation to the development of legislation on foreign agents is the increased control over academic institutions and researchers by security and law enforcement agencies. “Understanding Academic Freedom in the Russian Context” states, in particular, that the strengthening of such control creates an atmosphere of suspicion regarding the international contacts of scholars, “which destroys the liberal atmosphere of academic organizations.”
Amidst increasing political repression within the country and the tightening of Russian legislation on foreign agents in 2022, its impact on the academic environment in Russia is now taking new forms. For example, the ban on the production of information materials for minors by foreign agents envisioned by the Russian law has been put into practice in a rather unexpected way. In 2023, the National Research University Higher School of Economics (HSE), one of the leading Russian universities, in its instructions for the entrance interview for its journalism program prohibited applicants during the exam not only from using, but also even mentioning or quoting materials created by foreign agents, under the threat of annulling the results of the exam. It should be emphasized that the text of the law itself does not explicitly prohibit the use by minors for any purpose of materials produced by foreign agents. The ban created by the HSE is a vivid example of truly limitless opportunities for interpreting and implementing the vague legislation on foreign agents.
One example of direct discrimination against members of the Russian academic community who are bearers of the status of “foreign agent” is the Russian Academy of Sciences’ refusal to grant a commemorative medal to its member Yulia Sineoka in March 2024, who in February of the same year was included in the register of “foreign agents.” The reason for such a decision by the president of the Russian Academy of Sciences was the corresponding request of one of the deputies of the State Duma of the Russian Federation. According to the deputy himself, he will further seek the exclusion from the RAS of all scientists who have received the status of “foreign agent” in Russia.
It is worth noting that Russia is by no means the only country in which the active development of legislation on foreign agents and its analogues weaponizing transparency, as well as public smear campaigns, have led to serious negative consequences for academia. As another striking example, the de facto ban on Central European University (CEU) in Hungary resulted from amendments to the Hungarian education law in 2017, which were later found by the Court of Justice of the European Union to be inconsistent with EU law and limiting academic freedom. However, despite this court ruling, in 2019 CEU was forced to cease its activities in Budapest and commence operations in Vienna. Interestingly, in October 2023, the Prosecutor General’s Office of the Russian Federation declared CEU an undesirable organization, which means that from that moment on, any participation in the activities of this university could result in administrative or criminal liability with penalties of up to four years in prison.
The anti-democratic developments in Russia and Hungary have not stymied the development of repressive legislation on foreign agents and its negative impact on academia in other countries. For example, the Bulgarian draft law on foreign agents, introduced in September 2024 in the National Assembly and still under consideration, poses a serious threat to academic freedom, as the Bulgarian Center for Not-For-Profit Law (BCNL) points out in its detailed review of this document, rightly calling this initiative “the law against civil liberties.”
Further Caution to Academia
There is no doubt that fake foreign agent laws used as instruments of the weaponization of transparency have a negative impact on academic freedom. However, certain legislative initiatives undertaken in democratic contexts, have also drawn certain concern from some experts in terms of their potential negative effects on human rights and freedoms and, in particular, on the fundamental rights of freedom of expression through public participation in policy-making processes, freedom of association and right to privacy. For example, the European Center for Not-for-Profit Law (ECNL), in its position paper of April 9, 2024, while recognizing the legitimacy of the goal to bring to light any unduly covert influence by third country administrations as stated by the proponents of the Proposal for Directive establishing harmonised requirements in the internal market on transparency of interest representation carried out on behalf of third countries and amending Directive (EU) 2019/1937, notes that “the Directive lacks clarity and legal certainty on key definitions.” According to experts, “such legal ambiguity risks having a chilling effect on the participation of civil society in the public exchange of views and consultations in the EU.”
For the purposes of this article, it is important to emphasize that the Directive does not refer only to non-profit organizations. As is clear from the explanatory note within the Directive, the authors of the document explicitly envisage its scope to include academic activities. At the same time, they draw attention to the need to distinguish between independent academic activities in accordance with the principle of academic freedom as well as the freedom of scientific research, enshrined in Article 13 of the Charter of Fundamental Rights of the European Union, “pursued by researchers in a subject of their choice, the dissemination of the findings of that research, or teaching and educational activities that are conducted in accordance with the principle of academic freedom and institutional autonomy” and academic activities for foreign interests, “where the clear purpose of these activities is to influence the development, formulation or implementation of policy or legislation, or public decision-making processes, in the Union and they are carried out on behalf of a third country entity.” Unfortunately, the Directive does not contain any clear legal criteria to distinguish between these types of academic activities, which creates significant risks that, in practice even independent, absolutely legal academic activities not posing any threat to the democratic order will fall under the scope of the Directive and will be subject to registration as “interest representation activities.” This, in turn, may have a chilling effect, which ECNL experts warn about, on academic institutions and researchers, and may, to a certain extent, create obstacles for international academic cooperation.
It is worth noting that the inclusion of academia in the scope of the laws on ensuring transparency of foreign influence and, in particular, the laws on foreign agents, is not accidental. Today, academic activities are increasingly perceived as a very convenient sphere for foreign interference, and therefore they are also commonly part of proposals for greater control within the frameworks of the above-mentioned legislation on ensuring transparency. For example, the Organization for Economic Co-operation and Development (OECD), in its 2024 Public Governance Review “Strengthening the Transparency and Integrity of Foreign Influence Activities in France: A Tool for Tackling Foreign Interference Risks,” explicitly states: “The many opportunities for academic and cultural exchanges and travel, as well as the openness and freedom of academic research, political analysis, civic space and cultural activities in democracies, can easily pave the way for foreign interference.” As an example of such foreign interference, the review refers to the 2021 Institut de Recherche Stratégique de l’École Militaire (IRSEM) report, “Chinese Foreign Influence Operations: A Machiavellian Moment,” which cites the Confucius Institutes “that have been documented on numerous occasions as being involved in such activities, under the guise of teaching language and culture.”
Academic activities are increasingly perceived as a very convenient sphere for foreign interference.
Given this recent intensification of multifaceted destructive activities on the part of non-democratic actors aimed at undermining the democratic order in Europe and North America, it seems that the scope of the legislation on foreign agents will only expand, including, inter alia, academic activities. One of the arguments supporting this viewpoint is the proposal contained in the OECD review to significantly reduce the list of activities excluded from the scope of the legislation on transparency of foreign influence. Thus, the authors of the review treat the detailed lists of exemptions in the American FARA and Australian FITS as more of a weakness, which, as stated, “according to the authorities responsible for administering these laws, may be too broad.” The OECD, in particular, believes that FARA’s transparency goals could be inhibited by certain exemptions relating to, inter alia, “academic activities which may be exploited to avoid FARA’s disclosure requirements”.
Academic Freedom as Vulnerability or Strength?
According to data presented in “Democracy Winning and Losing at the Ballot,” the latest report from the Varieties of Democracy (V-Dem) Institute, based in Sweden, democracy is in decline around the world today. For the first time in decades, there are more closed autocracies than liberal democracies and autocratization remains the dominant trend. There is no doubt that democracies nowadays face unprecedented pressure from non-democratic actors using a variety of methods to achieve their political goals. These circumstances create the need to develop effective legal mechanisms to ensure the resilience of democracy, an example of which is legislation to ensure transparency of foreign influence.
At the same time, in their attempts to protect themselves from covert destructive interference from abroad, democracies should not lose their core pillars, which, first and foremost, include the rule of law and human rights and freedoms. Academic freedom is undoubtedly also one of the most important components of a democratic society, and in many ways its very existence plays an important role in maintaining democratic order. It is rather difficult to agree with the OECD’s position that “the openness and freedom of academic research, political analysis, civic space and cultural activities in democracies present vulnerabilities.” On the contrary, it seems that it is precisely the openness and freedom of academic research, backed by genuine scientific methods and a developed critical analysis of the information we consume, ensuring the possibility of establishing objective facts, that are the strengths of democracy in the fight against non-democratic actors whose main weapon is misleading. It is academic freedom that should be the key to success in the fight against disinformation campaigns and fake news, nationalist, far-right narratives, and political populism.
Maxim Krupskiy is a research scholar at the University of Illinois at Urbana-Champaign, College of Law, human rights defender, attorney-at-law and PhD in Philosophy with more than twelve years of law practice in Russia defending refugees, civil activists persecuted by the Russian authorities for political reasons, and NGOs labeled as “foreign agents.” He is a former visiting scholar at the Fletcher School of Law and Diplomacy at Tufts University, former non-resident fellow at The George Washington University and former research scholar at The Kennan Institute of the Woodrow Wilson International Center for Scholars (Galina Starovoitova Fellowship on Human Rights and Conflict Resolution). Maxim has been published in such outlets as The Fletcher Forum of World Affairs, The Conversation, Russia.Post, Forbes Russia, Foreign Affairs and others. Currently he is conducting a comprehensive comparative research project on “foreign agents” legislation in Russia and other countries of the world from the resilient democracy perspective, as well as studying various other authoritarian mechanisms used to suppress civil society.
