According to The New York Times, the Federal Bureau of Investigation was contemplating utilising NSO Group’s famed Pegasus spyware in criminal investigations as recently as early last year. According to internal FBI memos and court filings obtained by The Times, agency employees were in the “advanced” stages of drafting preparations to brief FBI leadership on the programme between late 2020 and early 2021. These records also show that the FBI created rules for federal prosecutors on how the FBI’s use of Pegasus should be revealed during court proceedings.
The materials do not indicate if the FBI contemplated employing the malware against the American people. The Times reported earlier this year that the NSA has tested Phantom, a variant of Pegasus that can target phones with US phone lines.
The FBI finally decided not to employ Pegasus in criminal investigations by July 2021. That same month, The Washington Post released an article alleging that the malware was used to infiltrate the phones of two women close to slain Saudi writer Jamal Khashoggi. A few months later, the US put Pegasus founder NSO Group on the Commerce Department’s entity list, barring US corporations from doing business with the company. Despite its decision not to employ Pegasus, the FBI has said that it is open to the use of spyware in the future.
“Just because the FBI ultimately decided not to deploy the tool in support of criminal investigations does not preclude it from testing, evaluating, and potentially deploying other similar tools for gaining access to encrypted communications used by criminals,” according to a legal briefing filed by the FBI last month.
The materials seem to provide a different image of the FBI’s interest in Pegasus than the one presented to Congress during a closed-door meeting in December by FBI Director Chris Wray. “If you mean have we utilised it in any of our investigations to gather or target anyone, the answer is – as I’m informed – no,” he said to Senator Ron Wyden’s query. “The reason I hedge, and I want to be upfront about it, is because we have bought some of their research and development capabilities.” In other words, to be able to find out how evil folks may utilise it.”
