The FBI came very close to using spyware for home surveillance

Photo: Alex Wong (Getty Images)

The FBI came close to using commercial spyware to aid in its domestic criminal investigations, the New York Times reported. The spyware was developed by NSO Group, the notorious Israeli surveillance provider whose products have been linked to spy scandals around the world.

In January, the Times broke the news that the FBI was considering procuring a surveillance system called “Phantom” from NSO that could reportedly hack any phone in the United States. The tool was a variant of NSO’s more well-known Pegasus malware and had the ability to extensively infiltrate mobile devices and monitor their activities. It was reported at the time that the FBI was considering using it in criminal investigations.

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But soon after news of the potential deal broke, privacy concerns were raised and the government found itself on the defensive.

At a congressional hearing earlier this year, FBI Director Chris Wray claimed that the government’s contacts with NSO were part of a “counterintelligence” operation, implying that the FBI never actually intended to use the spyware tool. Officials made it sound like they were investigating how such tools could be used by bad actors, but seemed to imply they had no interest in using them themselves. During another meeting, Wray similarly told congressional leaders that the bureau’s interest in NSO’s tools would allow the government “to be able to figure out how bad guys might use them, for example.”

However, new documents uncovered by the Times appear to indicate that the government was keen to use the tools for its own criminal investigations. The documents, retrieved about a Freedom of Information Act lawsuit, include a series of internal FBI PowerPoint presentations created in 2020 and 2021 that discuss how the FBI is using the hacking tools could. Among other things, the bureau’s criminal investigation department produced a 25-page memorandum that included “recommendations” for the use of NSO’s products “under certain specific conditions,” as well as proposed guidelines for prosecutors across the country on how to conduct the criminal exposure process for cases in which the tool is involved. The criminal investigation department also prepared a document for Wray on the possible use of the tool. The Times reports:

The internal FBI documents and legal briefs filed on behalf of the FBI provide the most complete picture yet of the FBI’s interest in providing Pegasus. Although heavily redacted, the internal documents show that from late 2020 through the summer of 2021, the FBI had shown a growing interest in potentially using Pegasus to hack the phones of FBI targets in criminal investigations.

Gizmodo has reached out to the Justice Department for comment and will update this story when the agency responds.

It had previously been reported that the government had spent almost two years considering whether it could legally deploy the surveillance product without violating US legal and constitutional restrictions. However, the NSO controversy reached a climax in the middle of last summer with the publication of the “Pegasus Project,” a journalistic exposé detailing how NSO’s tools have been misused by foreign governments to recruit journalists, activists, human rights advocates, politicians and many others other. Shortly after the NSO controversy erupted, the FBI apparently abandoned its quest to use the company’s products.

Since then, NSO has been fighting for survival. Not long after the deal with the FBI fell through, the US blacklisted NSO by placing it on the Commerce Department’s “Entity List” — a list of foreign companies deemed to be operating “contrary” to America’s national security interests became. Inclusion on the list comes with severe trade restrictions and reduces the ability of American companies to provide parts and services to listed companies. Cut off from inflows of investments and critical assets, NSO is struggling financially. A deal by defense giant L3Harris Technologies to acquire the spyware vendor fell through this summer after the Biden administration opposed it.

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