FBI considered deploying NSO spyware, internal records indicate
Jerry Dunleavy
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The FBI considered deploying spyware from a since-blacklisted Israeli tech company, internal bureau records indicate, with FBI Director Christopher Wray testifying that the technology has not been used by the FBI to investigate anyone.
NSO Group Technologies, a company based in Israel, is known for Pegasus, a spyware tool that is known to aid in the surveillance of cellphones. Wray told Congress in March that “the FBI has not and did not use the NSO products operationally in any investigation” but that the bureau “bought a limited license for testing and evaluation.”
But the New York Times reported this week it had obtained FBI documents through a Freedom of Information Act lawsuit that “show that FBI officials made a push in late 2020 and the first half of 2021 to deploy the hacking tools … in its own criminal investigations.” The outlet said FBI officials “developed advanced plans to brief the bureau’s leadership, and drew up guidelines for federal prosecutors about how the FBI’s use of hacking tools would need to be disclosed during criminal proceedings.”
One October 2020 FBI synopsis of a September 2020 meeting said it was written to “document meeting with CID [Criminal Investigative Division] and OTD [Operational Technology Division] to discuss potential deployment [REDACTED] in support of criminal investigations.” Similar October 2020 records of another September 2020 meeting and an October 2020 meeting said the Justice Department was also briefed on this.
The FBI records indicate NSO continued to be discussed within the FBI into 2021 as well.
Rep. Chris Stewart (R-UT) pressed Wray on this issue in March, saying reporting indicated the FBI bought Pegasus spyware in 2019 and evaluated it under the codename Phantom. The FBI chief said it was never used operationally but was rather used just for testing and evaluation.
“So, not used in any investigation of anyone, but rather as part of our routine responsibilities to evaluate technologies that are out there, not just from a perspective of could they be used someday legally, but also, more importantly, what are the security concerns raised by those products,” Wray said, adding, “We’ve tested and evaluated it, and that’s over. It hasn’t been used in any investigation of anyone.”
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The FBI director contended that “we decided not to use it, even before the current brouhaha, we decided not to use it for any purpose other than the one I’ve already referred to.”
Stewart pressed Wray on why the FBI would do this.
“We test and evaluate all sorts of technologies and products which, if in the wrong hands, can be used against our agents, for example, conducting their operations. So part of it is, from a counterintelligence security perspective, we need to know what tools are out there that the bad guys can use against our people,” Wray said.
The FBI director was also asked about this during a Senate session dated October, according to a declassified document obtained by the New York Times.
“If you mean have we used it in any of our investigations to collect or target somebody, the answer is — as I am assured — no,” he said. “The reason why I hedge, and I want to be transparent, that we have acquired some of their tools for research and development. In other words, to be able to figure out how bad guys could use it, for example.”
Wray said the NSO spyware technology was not used by the FBI for anything “other than research and development, which I think is something you’d expect us to do.”
The FBI told Fox News on Tuesday that “[Pegasus] will not be used operationally in the future — permanently.” The bureau told the outlet that Wray’s testimony “was accurate when given and remains true today — there has been no operational use of the NSO product to support any FBI investigation.”
The Commerce Department announced in November 2021 that NSO was added to a U.S. blacklist “based on evidence that these entities developed and supplied spyware to foreign governments that used these tools to maliciously target government officials, journalists, businesspeople, activists, academics, and embassy workers.”
The department added that “these tools have also enabled foreign governments to conduct transnational repression, which is the practice of authoritarian governments targeting dissidents, journalists and activists outside of their sovereign borders to silence dissent.”
NSO denied the allegations.
“NSO Group is dismayed by the decision given that our technologies support U.S. national security interests and policies by preventing terrorism and crime, and thus we will advocate for this decision to be reversed,” NSO said in response to the blacklisting last year. “We look forward to presenting the full information regarding how we have the world’s most rigorous compliance and human rights programs that are based [sic] the American values we deeply share, which already resulted in multiple terminations of contacts with government agencies that misused our products.”
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The Biden Justice Department has been defending the FBI against the New York Times FOIA lawsuit in federal court, dismissing the outlet’s “facile” arguments.
“The FBI’s testing and evaluation of the NSO tool would reveal numerous sensitive law enforcement techniques, including how FBI goes about testing technologies of this type, what it is looking for and finds significant, and how the tool might be used against United States Government personnel,” the DOJ said earlier this month. “And just because the FBI ultimately decided not to deploy the tool in support of criminal investigations does not mean it would not test, evaluate, and potentially deploy other similar tools for gaining access to encrypted communications used by criminals.”