Sen. Wyden Demands Answers From FBI on Hacking of Americans’ Phones

Original article.
By Michael Washburn, December 22, 2022, Updated: December 23, 2022

Sen. Ron Wyden (D-Ore.) speaks to reporters in Washington on Aug. 6, 2022. (Anna Rose Layden/Getty Images)

Sen. Ron Wyden (D-Ore.) has called for the FBI to provide public disclosures about the extent of its hacking of the phones of U.S. citizens and the criteria that the bureau uses in determining when to put specialized software to use to manipulate a person’s phone.

In a Dec. 20 letter to FBI Director Christopher Wray, the senator expressed a number of concerns related to the agency’s acquisition of—and later, its purported decision to not use—highly specialized Pegasus software developed by the Israeli firm NSO Group for the purpose of hacking phones. The tool can be used to infiltrate a person’s phone and extract its contents without the owner’s knowledge.

“The FBI cannot continue to shroud in secrecy the rules that govern its hacking operations against Americans’ phones and computers,” Wyden wrote.

In November 2021, the Commerce Department’s Bureau of Industry and Security (BIS) added NSO Group to its Entity List of companies that have engaged in activities posing a risk to U.S. national security or to the nation’s interests abroad. The BIS found that NSO Group and other entities “developed and supplied spyware to foreign governments that used these tools to maliciously target government officials, journalists, businesspeople, activists, academics, and embassy workers.”

Given this determination about NSO Group, Wyden finds it particularly concerning that the FBI would consider making use of technology developed and supplied by the foreign entity without making public its deliberations and its determinations about the possibility of using such software in the future to target U.S. citizens.

In Wyden’s view, the bureau’s decision to not make use of the software doesn’t put the issue to rest. In particular, Wyden seeks answers about whether the FBI might use such technology in the future to spy on Americans. A statement from Wyden’s office accompanying the letter notes that the FBI has declined to make statistics available regarding its implementation of hacking technologies and that this failure contrasts with the ready availability of statistics concerning the use of wiretaps and other forms of surveillance.

“The American people have a right to know the scale of the FBI’s hacking activities and the rules that govern the use of this controversial surveillance technique. Judges must have the information they need to carefully review the FBI’s remote search applications, particularly in cases where the FBI intends to engage in bulk remote searches against hundreds, or thousands of targets at a time,” Wyden wrote to Wray.

Tough Questions

Wyden gave Wray a deadline of Jan. 27, 2023, to answer 10 detailed questions about the FBI’s hacking activities, including how many operations the FBI has undertaken in each of the past three years making use of Network Investigative Techniques; of that number, how many were court-authorized; how many people, devices, and accounts were subject to remote searches by the FBI; the degree of interagency cooperation around NSO Group software; the reasons why the FBI ostensibly came to the decision to not use NSO Group software in its investigations; and whether a legal determination has been made that would bar the agency from using that tool in the future.

In publicly challenging Wray and the FBI over hacking operations and technology, Wyden has acted consistently with the image he has sought to cultivate over a long political career, according to James Moore, acting director of the School of Social Sciences at Pacific University in Forest Grove, Oregon.

In the past, Wyden has sought to position himself as both a champion of ordinary citizens who lack personal influence in the corridors of power in Washington and as a trenchant critic of the potential for overreach in the monitoring and surveillance of individuals.

“Wyden’s interest in this kind of thing dates back more than 20 years. He was one of the big voices on the Senate Intelligence Committee after 9/11 saying that the U.S. government is going too far in some of this stuff,” Moore told The Epoch Times.

“He was instrumental in evaluating the Prism program at the Pentagon which was looking at domestic cell phone records.”

Prism was a top-secret program revealed in 2013 to have been put to use by the National Security Agency to gain access to highly sensitive personal information within the systems of Facebook, Google, Apple, and other internet firms.

Wyden has also taken on the Social Security Administration, the tobacco industry, and, for a time, the timber industry, according to Moore.

“He’s got a real persona as a crusader. This is Ron Wyden fighting for the little guy,” Moore said.

He sees another reason why Wyden might have felt emboldened to challenge the FBI over the use of hacking technology. As riots convulsed Portland, Oregon, for many weeks after the death of George Floyd in May 2020, the FBI got involved in efforts to maintain public order, to the relief of some and the outrage of others, he noted. Some progressives and activists in the state view the bureau as akin to an occupying force and naturally welcome and encourage challenges such as the one that Wyden has now mounted, he observed.

“The FBI is a divisive topic here in Oregon because the FBI was one of the federal agencies involved when Portland had protests night after night after night and some of them turned into riots. Some people here say that the federal government sent in nameless and faceless troops who kidnapped people off the street who were protesting,” Moore said.

“Other people say that the FBI was protecting federal buildings, so why are you taking on the FBI?”

FBI officials didn’t respond by press time to a request by The Epoch Times for comment.

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Michael Washburn, REPORTER

Michael Washburn is a New York-based reporter who covers U.S. and China-related topics. He has a background in legal and financial journalism, and also writes about arts and culture. Additionally, he is the host of the weekly podcast Reading the Globe. His books include “The Uprooted and Other Stories,” “When We’re Grownups,” and “Stranger, Stranger.”