President Joe Biden signed an executive order banning the U.S. government from using commercial spyware in a number of instances.
The administration decided to act after it came to light at least 50 U.S. government officials were targeted by commercial spyware that hacks into smartphones to surveil their owners, according to CBS. A White House official explained that the known victims who work for the U.S. span “at least ten countries on multiple continents.”
“I hereby establish as the policy of the United States Government that it shall not make operational use of commercial spyware that poses significant counterintelligence or security risks to the United States Government or significant risks of improper use by a foreign government or foreign person,” read the executive order. Spyware that will be affected is that which has been used to target the U.S. government and Americans in the past and the spyware that is under the sway of foreign governments or actors.
There are, however, exceptions for government agencies to use commercial spyware if the agency head determines that the software does not pose a counterintelligence or national-security risk. The order will also not apply to spyware developed by government agencies themselves, such as programs by the NSA and CIA, which have a long history of unlawful surveillance.
The move follows earlier actions against commercial spyware, including the 2021 blacklisting of the Israeli firm NSO Group, which developed and supplied spyware named Pegasus to foreign governments that used these tools to maliciously target political dissenters. The FBI confirmed last year that it tested Pegasus for possible use in criminal investigations, according to Axios.
The administration framed the new order as the government’s attempt not to contribute, directly or indirectly, to the proliferation of these programs. But some observers think it won’t have much of an effect unilaterally, since other countries must act as well.
The news comes as Congress attempts to reform and renew Section 702 of the Foreign Intelligence Security Act (FISA), which has allowed warrantless surveillance of Americans in the past. Supporters say it has been successful in fighting terrorism by giving the intelligence community broad power to surveil foreigners abroad. However, if Americans are in contact with those foreign targets, they can end up in a searchable database. Section 702, which does not require warrants to be obtained for those communications, runs contrary to established American surveillance law and even to Title I of FISA.
The FBI has been criticized for using the database for matters that are not genuine national-security concerns.
Representative Darin LaHood (R., Il.), who is on the bipartisan Section 702 working group, explained that he believes he himself has been surveilled by the program. He made that determination after a Section 702 report was declassified, the New York Times reported. The report revealed that an FBI analyst violated the rules by making overly broad queries about an undisclosed member of Congress.