Biden order bans use of spyware for government surveillance, with exceptions

March 28, 2023
Jen Krausz

President Joe Biden signed an executive order banning at least some types of spyware from being used for surveillance by the federal government, but it makes exceptions and leaves the types that would be banned too vague to be of much use. 

The spyware in question is put on someone's smartphone or other devices to send information about their communications back to the person surveilling them, without the other person's consent.

Governments use spyware to learn others' secrets, especially authoritarian governments where people don't ostensibly have the same rights they do in the U.S.

The order bans the use of spyware by intelligence, law enforcement and defense agencies in the federal government, but only bans spyware that poses a “significant” counterintelligence or security risk to U.S. citizens or the government.

"High bar"

Any agency that did use spyware would have to get the head of that agency to certify that the spyware did not constitute a security risk.

Officials who were briefing reporters would not say which spyware currently on the market would be banned, but one official said spyware manufacturers would have to meet a "high bar" in order to avoid the ban.

Companies could appeal the ban, officials added. If they won their appeal, their spyware could potentially be used.

Biden's intention in signing the ban is to encourage other countries to ban spyware as well, which could cut down on spying by those countries against the U.S.

Spyware is being widely used to surveil diplomats overseas, and one Biden official said that at least 50 U.S. overseas personnel have been affected.

Sanctions against companies?

Connecticut Rep. Jim Hines (D) praised the order but said he didn't think it went far enough. He asked for sanctions against spyware companies and rogue governments who use it against us and other nations.

The FBI has shown interest in using spyware to break increasingly difficult encryption on today's smart devices, but should back off from doing so now that the Biden order is in place.

It obtained a license for Pegasus spyware technology, made by Israeli company NGO Group, in 2021, but the company has a long list of privacy violations.

Christopher Wray, the agency's head, said it never used the technology and obtained the license to study it and understand how it works.

Pegasus would likely be on the banned spyware list because of its history of privacy violations.

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