OPINION:

During the Trump administration, the FBI paid $5 million to an Israeli software company for a license to use its “zero-click” surveillance software called Pegasus. Zero-click refers to software that can download the contents of a target’s computer or mobile device without the need for tricking the target into clicking on it. The FBI operated the software from a warehouse in New Jersey.

Before revealing any of this to the two congressional intelligence committees to which the FBI reports, it experimented with the software. The experiments apparently consisted of testing Pegasus by spying — illegally and unconstitutionally, since no judicially issued search warrant had authorized the use of Pegasus — on unwitting Americans by downloading data from their devices.

When congressional investigators got wind of these experiments, the Senate Intelligence Committee summoned FBI Director Christopher Wray to testify in secret about the acquisition and use of Pegasus, and he did so in December 2021. He told the mostly pliant senators that the FBI purchased Pegasus only “to be able to figure out how bad guys could use it.” Is that even believable?

In follow-up testimony in March 2022, Mr. Wray elaborated that Pegasus was used “as part of our routine responsibilities to evaluate technologies that are out there, not just from a perspective of could they be used someday legally, but also, more important, what are the security concerns raised by those products.” More FBI gibberish.

Last week, dozens of internal FBI memos and court records told a different story — a story that has caused Sen. Ron Wyden, Democrat of Oregon and a member of the Senate Intelligence Committee, to question the veracity of Mr. Wray’s testimony. Mr. Wyden’s healthy skepticism caused the FBI to reluctantly reveal that it had ordered its own version of Pegasus, called Phantom, which the Israelis tailor-made for hacking American mobile devices.

Here is the backstory.

The Fourth Amendment to the Constitution was written to preserve the natural right to privacy and to cause law enforcement to focus on crimes, not surveillance. The instrument of these purposes is the requirement of a judicially issued search warrant before the government can engage in any surveillance.

A search warrant can be issued only based on probable cause of crime demonstrated under oath to the issuing judge and a showing that the place to be searched or person or thing to be seized is more likely than not to reveal evidence of crime. The warrant must also specifically describe the place to be searched and things to be seized. Warrants can be issued only for investigations of actual crimes that have already occurred, not for experiments.

The Fourth Amendment contains some of the most precise language in the Constitution, as it was written intentionally to thwart the rapacious appetite of governments to snoop, which the British did to the colonists using general warrants.

General warrants were not based on probable cause of crime and lacked all specificity. Rather, they were based on government need — a totalitarian standard because whatever the government wants it will claim it needs — and they authorized the bearer to search wherever he wished and seize whatever he found.

The Fourth Amendment was intended to put a stop to general warrants. As we know from the wildly unconstitutional FISA court and the NSA’s secret criminal spying on all Americans, that amendment, like much of the Constitution, has failed abysmally to restrain the government.

Now back to the FBI and Phantom.

In July 2021, President Biden personally put a stop to the FBI’s use of Phantom, and the congressional intelligence committees assumed that that was the end of it.

Yet last week, when reporters revealed the results of Freedom of Information Act requests for memos and court documents pertaining to Phantom, a different story emerged. The documents the FBI furnished reveal a vast determination by their management to showcase and deploy Phantom to its agents and other federal law enforcement personnel.

The procedures under which the House and Senate intelligence committees operate require that secrets be kept secret. Thus, when the FBI director testifies before those committees, the representatives and senators who hear the testimony may not reveal what they heard to the press or even to their congressional colleagues. Mr. Wyden has apparently had enough of law enforcement deception and secrecy. Hence his complaints in letters to Mr. Wray — letters that more or less tell us what’s going on.

All of this leaves us with an FBI out of control and run by a director who has been credibly accused of misleading Congress while under oath — a felony — and whose agents have been credibly accused of conspiracy to engage in computer hacking — also a felony. Who knows what other liberty-assaulting widgets the FBI has in its unconstitutional toolbox about which Wyden and his investigators have yet to learn?

When Daniel Ellsberg courageously removed the Pentagon Papers from his office and gave them to reporters from The New York Times and The Washington Post, he was charged with espionage. The papers revealed that Pentagon generals were lying to President Lyndon B. Johnson and Johnson was lying to the public about the Vietnam War.

During Mr. Ellsberg’s trial, FBI agents broke into the office of his psychiatrist and stole his medical records so as to use them at the trial. The federal judge presiding at the trial was so outraged at the FBI’s misconduct that he dismissed the indictment against Mr. Ellsberg, and the government did not appeal the dismissal.

The Ellsberg break-in took the FBI a few hours and was destructive and dangerous.

Today’s FBI could have done the Ellsberg heist remotely in a few minutes. Today’s FBI has agents who are the bad guys they have warned us about. Today’s FBI has morphed from crime fighting to crime anticipating. Today’s FBI is effectively a domestic spying operation nowhere sanctioned in the Constitution. It should be defunded and disbanded.

 

• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.

A number of officials from the US Federal Bureau of Investigation made efforts to advance the deployment of Pegasus, the infamous phone-hacking software developed by Israel’s NSO Group, The New York Times reported Saturday.

The FBI officials pushed for the use of the hacking software in late 2020 and the first half of 2021, according to documents revealed after a Freedom of Information Act lawsuit was brought by the newspaper.

“The officials developed advanced plans to brief the bureau’s leadership, and drew up guidelines for federal prosecutors about how the FBI’s use of hacking tools would need to be disclosed during criminal proceedings,” the report said.

The report said it was unclear if the FBI planned to use the tech on American nationals or foreign citizens.

Earlier this year, the newspaper revealed that the FBI had also tested NSO’s Phantom software, which is capable of hacking US phones.

The FBI ultimately decided against using NSO’s hackware as it became clear that it had been linked to human rights violations around the world and as negative publicity about the tool increased, the report said.

According to the documents released to the Times, on July 22, 2021, the decision was made to “cease all efforts regarding the potential use of the NSO product.”

However, according to recent court documents, the report said, the bureau has not ruled out the possibility of deploying similar tech in the future.

“Just because the FBI ultimately decided not to deploy the tool in support of criminal investigations does not mean it would not test, evaluate and potentially deploy other similar tools for gaining access to encrypted communications used by criminals,” read a legal brief submitted on the bureau’s behalf last month.

The report said that in September and October of 2020, FBI officials built a presentation that included “detailed discussions of the potential risks or advantages of using the NSO tool” as well as “proposals for specific steps the FBI or [US Department of Justice] should take before making a decision about whether to use it.”

On March 29, 2021, the FBI’s Criminal Investigative Division distributed an internal memorandum explaining recommendations supporting the use of Pegasus “under certain specific conditions,” the report said, adding that those conditions were redacted.

The department also proposed guidelines for government lawyers needing to address the use of spyware.

The FBI’s purchase of the software was initially revealed in January. Since then, the bureau has asserted that it only purchased Pegasus to assess how rivals of the US may put it to use. The bureau has paid approximately $5 million to NSO, the report said.

Last year, FBI chief Christopher A. Wray told senators behind closed doors that while the FBI had purchased and used Pegasus, it was “to be able to figure out how bad guys could use it, for example.”

Wray made the comments weeks after the US Department of Commerce blacklisted two Israeli phone spyware companies, NSO Group and Candiru, adding them to the list of foreign companies that engage in malicious cyber activities.

A spokesperson for the FBI said: “The director’s testimony was accurate when given and remains true today — there has been no operational use of the NSO product to support any FBI investigation.”

However, the Times reported in May that the FBI wrote to the Israeli government in 2018 that it intended to use Pegasus.

The report said that an official within the FBI’s operational and technology division wrote in a letter to the Defense Ministry that the bureau’s purchase of the spyware was “for the collection of data from mobile devices for the prevention and investigation of crimes and terrorism, in compliance with privacy and national security laws.”

The report indicated that the agency ended up testing the software internally but likely did not use it.

NSO, the Israeli firm responsible for developing Pegasus, has been engulfed in controversy over reports that tens of thousands of human rights activists, journalists, politicians, and business executives worldwide were listed as potential targets of its Pegasus software.

Smartphones infected with Pegasus are essentially turned into pocket spying devices, allowing the user to read the target’s messages, look through their photos, track their location and even turn on their camera and microphone without them knowing.

NSO says it sells Pegasus only to governments to fight crime and terrorism. All sales require approval from the Defense Ministry. It insists it has safeguards in place to prevent abuse and that it has terminated several contracts due to the inappropriate use of Pegasus.

Michael Horovitz contributed to this report.

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