Since 1998, the FBI has employed hacking methods and tools like spyware, but there has been no public record detailing how often these tactics have been used. However, new regulations set to commence in 2029 will change this, specifically regarding the application of spyware for accessing individuals’ real-time communications.
In 2029, U.S. courts will begin to publicly report the frequency with which judges grant permission for the use of wiretaps that involve hacking tools and spyware, classified by the authorities as network investigative techniques (NITs).
For nearly twenty years, the Administrative Office of the U.S. Courts has been releasing annual Wiretap Reports. These reports provide insights into the number of wiretaps authorized yearly, differentiating between federal and state judicial orders, the states where wiretaps occurred, the types of crimes being investigated, and other relevant statistics.
Wiretaps enable law enforcement to monitor individuals’ calls, texts, and other forms of communication in real-time. Due to the highly invasive nature of wiretaps, law enforcement must present compelling evidence of a crime before they can receive judicial approval for such measures. Consequently, wiretap approvals are typically granted less frequently than search warrants, though they can capture extensive amounts of communication. In a notable past instance, a single wiretap operation gathered millions of text messages over three months.
Each year’s wiretap reports outline the types of wiretaps authorized, including audio wiretaps for capturing live phone conversations, oral taps using physical microphones for eavesdropping, and electronic tapping for monitoring text messages, emails, and other communications as they travel through a service provider’s network.
Recently, the Administrative Office of the U.S. Courts informed Senator Ron Wyden that it would start documenting a new category of “spyware/hacking” surveillance in the Wiretap Report beginning in 2028, with the data expected to be published in the year following.
A representative from the Administrative Office confirmed the update, noting that the Wiretap Report is compiled from individual submissions across the country throughout the year. They indicated that updates to reporting forms and procedures are necessary before including the new data in the annual report.
It’s essential to understand that this forthcoming statistic will only reflect instances where authorities have utilized spyware to intercept real-time communications like those on Signal or WhatsApp. It will not account for instances where tools are used to remotely breach a device and extract stored data, such as images or files—a different legal process entirely.
Senator Wyden, who has expressed concerns regarding the secrecy surrounding electronic surveillance orders and has advocated for the availability of such data since 2017, welcomed this development.
“The American public remains largely uninformed about the various methods the government employs for surveillance,” Wyden stated. “I appreciate that federal courts will now collect and disclose data concerning hacking; however, Congress must advance further by passing my Government Surveillance Transparency Act,” a proposal he and others have reintroduced this year.
Privacy advocates regard this shift towards transparency as a significant achievement.
“Until now, we could only speculate about the extent of the issue,” remarked Eva Galperin, the Electronic Frontier Foundation’s cybersecurity director and a specialist in government spyware.
Galperin expressed that once these statistics become accessible, they will contribute to holding the U.S. government accountable for any misuse of spyware, as it will be more challenging for authorities to deny usage. “Having a report that indicates the number of spyware applications will assist in accountability, particularly if that number is substantial,” she added.
Brett Max Kaufman, a senior counsel at the American Civil Liberties Union’s Center for Democracy, asserted that this change represents a crucial and overdue advancement toward transparency regarding government hacking, which should inform future policies and laws on the matter.
In contrast, other nations, such as Italy, already make detailed data on spyware usage publicly available. For instance, in 2023, Italian authorities reportedly used spyware against over 4,300 targets.
