- The Washington Times - Monday, March 27, 2023

President Biden signed an order Monday restricting the government’s use of spyware to surveil individuals around the world, but it comes with exceptions and doesn’t define which technologies would be limited.

Spyware is a surveillance tool secretly installed on a person’s smartphone or computer to monitor their internet usage, keystrokes and other activities. That information is then sent to a government or other entity without the person’s consent.  

U.S. lawmakers have grown increasingly concerned about spyware placed on the phones of diplomats to learn government secrets. And authoritarian governments are known to use it to track journalists and political enemies.

Mr. Biden’s order bars the use of spyware across the federal government, including by intelligence, law enforcement and defense agencies. However, the ban only bars the use of the snooping malware deemed a “significant” counterintelligence or security risk to U.S. citizens or government information.

Under the order, the head of any U.S. agency must certify that the technology being used doesn’t pose a security risk.

Senior administration officials briefing reporters on the order declined to say which spyware tools would be deemed a security risk or how that would be determined. The officials also balked at the idea of making public the list of banned spyware.

One senior administration official said spyware manufacturers would need to meet a “high bar” to win a government contract, but added that a company will be able to appeal a ban.

By banning spyware, Mr. Biden is aiming to set an example that will encourage other governments around the world to abandon its use. His thinking is that limited use of the tools will prevent proliferation, thus reducing incidents of spying on U.S. diplomats and personnel.

At least 50 overseas U.S. personnel have been targeted by commercial spyware, one official told reporters.

Rep. Jim Himes of Connecticut, the top Democrat on the House Permanent Select Committee on Intelligence, called the order “a critical step,” but said more work needs to be done. He called on the administration to sanction spyware companies and rogue governments.

Even as the Biden administration condemns the use of spyware, the U.S. government has become increasingly interested in deploying the technology. 

The FBI, for example, has looked into the tools as a response to the increasing difficulty of obtaining evidence from encrypted devices and messaging services.

The FBI confirmed last year that it had obtained a license for Pegasus, a spyware product Israeli tech firm NSO Group, which has come under fire for a long list of privacy violations. NSO Group was blacklisted by the Biden administration in 2021.

FBI Director Christopher A. Wray told Congress that the agency had never used the software, but obtained the license to better understand how the technology worked.

• Jeff Mordock can be reached at jmordock@washingtontimes.com.

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