US Courts Will Start Disclosing How Often the Government Uses Spyware

The FBI has been using hacking techniques and spyware since at least 1998, yet until now there has not been a single public figure showing how often the agency resorts to such methods. That is now going to change — at least when it comes to the use of spyware to wiretap communications in real time.

The Administrative Office of the US Courts, which coordinates the work of the judicial system, told TechCrunch that it will begin tracking a new category of surveillance — “spyware / hacking” — in its annual Wiretap Report. These reports have been published for nearly two decades and detail how many interception orders were issued during the year, by whom — federal or state judges — in which states and for which types of crimes. The new column will appear for the first time in the report for 2028, which will be published in 2029. According to a spokesperson for the office, the delay is because reporting forms and procedures across the country will have to be updated.

What exactly will be counted

This concerns so-called network investigating techniques (NITs), used to intercept correspondence and calls — including messages on Signal and WhatsApp — as they pass through. An important caveat: the statistics will cover only the interception of communications, but not cases where a phone is hacked remotely to extract files, photos or location data stored on it. Legally, the former is considered wiretapping and the latter a search, which falls under a different procedure.

Wiretapping gives law enforcement access to calls and messages in real time and is so intrusive on private life that authorizing it requires a high standard of evidence. Wiretap orders are issued notably less often than search warrants, yet they too are capable of capturing enormous volumes of other people’s communications: in one previous case, a single order made it possible to collect millions of text messages over three months.

The reaction

The change was secured by Democratic Senator Ron Wyden, who since 2017 has criticized the “excessive secrecy” surrounding electronic surveillance. He welcomed the decision but noted that Americans still largely do not know how they are being watched, and he called on Congress to pass his bill on the transparency of government oversight.

Privacy experts are calling the move a major victory. EFF’s Director of Cybersecurity Eva Galperin stressed that until now the scale of the phenomenon could only be guessed at. Public figures, she said, will make it harder for authorities to deny the use of spyware: “It’s hard to claim you’re using spyware as a surgical instrument when you’ve deployed it tens of thousands of times.” The ACLU called the change a “long-overdue step forward.”

Other countries already practice this kind of openness. In Italy, for example, according to publicly available data, spyware was used against 4,321 targets in 2023.

Source: TechCrunch