Internal Documents Show How Close the F.B.I. Came to Deploying Spyware - The New York Times

WASHINGTON — During a closed-door league with lawmakers past December, Christopher A. Wray, the manager of the F.B.I., was asked whether the bureau had ever purchased and utilized Pegasus, the hacking instrumentality that penetrates mobile phones and extracts their contents.

Mr. Wray acknowledged that the F.B.I. had bought a licence for Pegasus, but lone for probe and development. “To beryllium capable to fig retired however atrocious guys could usage it, for example,” helium told Senator Ron Wyden, Democrat of Oregon, according to a transcript of the proceeding that was precocious declassified.

But dozens of interior F.B.I. documents and tribunal records archer a antithetic story. The documents, produced successful effect to a Freedom of Information Act suit brought by The New York Times against the bureau, amusement that F.B.I. officials made a propulsion successful precocious 2020 and the archetypal fractional of 2021 to deploy the hacking tools — made by the Israeli spyware steadfast NSO — successful its ain transgression investigations. The officials developed precocious plans to little the bureau’s leadership, and drew up guidelines for national prosecutors astir however the F.B.I.’s usage of hacking tools would request to beryllium disclosed during transgression proceedings.

The F.B.I. yet decided not to deploy Pegasus successful transgression investigations successful July 2021, amid a flurry of stories astir however the hacking instrumentality had been abused by governments crossed the globe. But the documents connection a glimpse astatine however the U.S. authorities — implicit 2 statesmanlike administrations — wrestled with the committedness and peril of a almighty cyberweapon. And, contempt the F.B.I. determination not to usage Pegasus, tribunal documents bespeak the bureau remains funny successful perchance utilizing spyware successful aboriginal investigations.

“Just due to the fact that the F.B.I. yet decided not to deploy the instrumentality successful enactment of transgression investigations does not mean it would not test, measure and perchance deploy different akin tools for gaining entree to encrypted communications utilized by criminals,” stated a legal brief submitted connected behalf of the F.B.I. precocious past month.

In a statement, Mr. Wyden said “it is wholly unacceptable for the F.B.I. manager to supply misleading grounds astir the bureau’s acquisition of almighty hacking tools and past hold months to springiness the afloat communicative to Congress and the American people.”

He added, “The F.B.I. besides owes Americans a wide mentation arsenic to whether the aboriginal operational usage of NSO tools is inactive connected the table.”

An F.B.I. spokeswoman said “the director’s grounds was close erstwhile fixed and remains existent contiguous — determination has been nary operational usage of the NSO merchandise to enactment immoderate FBI investigation.” A elder F.B.I. authoritative added that, successful summation to Mr. Wray’s nationalist and classified testimony, bureau officials person besides fixed classified briefings connected the substance to members of Congress and their staffs.

The specifics of wherefore the bureau chose not to usage Pegasus stay a mystery, but American officials person said that it was successful ample portion due to the fact that of mounting antagonistic publicity astir however the instrumentality had been utilized by governments astir the world.

Pegasus is simply a alleged zero-click hacking instrumentality that tin invade a target’s mobile telephone and extract messages, photos, contacts, messages and video recordings. Numerous governments, some autocracies and democracies, person purchased and deployed Pegasus successful caller years. It has been utilized by constabulary and quality services to hack the phones of cause kingpins and terrorists, but gained notoriety erstwhile it was revealed that governments, like Saudi Arabia, Mexico, Hungary and India had deployed it against governmental dissidents, journalists and quality rights workers.

Mr. Wray’s closed-door grounds came conscionable weeks aft the Biden medication past November placed NSO and different Israeli hacking steadfast connected a Commerce Department blacklist, preventing American companies from selling exertion to the firms without support from the U.S. government. On Capitol Hill, Congress is moving connected a bipartisan measure that would prohibition authorities agencies from utilizing overseas commercialized spyware specified arsenic Pegasus.

The Times revealed successful January that the F.B.I. had purchased Pegasus successful 2018 and, implicit the adjacent 2 years, tested the spyware astatine a concealed installation successful New Jersey. Since the bureau archetypal purchased the tool, it has paid astir $5 cardinal to NSO.

During a legislature proceeding successful March, Mr. Wray said the bureau had bought a “limited license” for investigating and valuation “as portion of our regular responsibilities to measure technologies that are retired there, not conscionable from a position of could they beryllium utilized someday legally, but also, much important, what are the information concerns raised by those products.”

“So, precise antithetic from utilizing it to analyse anyone,” helium said.

A June missive from the F.B.I. to Mr. Wyden made akin points, saying the bureau purchased a licence “to research imaginable aboriginal ineligible usage of the NSO merchandise and imaginable information concerns the merchandise poses.”

The missive continued, “After investigating and evaluation, the F.B.I. chose not to usage the merchandise operationally successful immoderate investigation.”

During his clip arsenic F.B.I. director, Mr. Wray has worked to physique bully relations with lawmakers from some parties, particularly aft the tumultuous years of his predecessor, James B. Comey. He has earned praise from immoderate connected Capitol Hill for his nationalist grounds during the Trump medication years — connected issues including Russia and home extremism — that infuriated President Donald J. Trump.

The interior F.B.I. documents and ineligible briefs submitted connected behalf of the bureau springiness the astir implicit representation to day of the bureau’s involvement successful deploying Pegasus. While heavy redacted, the interior documents amusement that, from precocious 2020 until the summertime of 2021, the F.B.I. had demonstrated a increasing involvement successful perchance utilizing Pegasus to hack the phones of F.B.I. targets successful transgression investigations.

In September and October 2020, aft the bureau had tested the product, F.B.I. officials enactment unneurotic PowerPoint presentations that included “detailed discussions of the imaginable risks oregon advantages of utilizing the NSO tool” and “proposals for circumstantial steps the F.B.I. oregon D.O.J. should instrumentality earlier making a determination astir whether to usage it.”

On March 29, 2021, 2 months aft President Biden took office, the bureau’s Criminal Investigative Division circulated a 25-page memorandum that documented the division’s recommendations supporting the usage of Pegasus “under definite circumstantial conditions,” which were not wide successful the redacted documents.

Days later, the aforesaid part projected guidelines for authorities lawyers astir the state who prosecute cases brought by the F.B.I. astir “how the tool’s usage could beryllium appropriately addressed successful transgression discovery.”

Then, successful May past year, the bureau’s Criminal Investigative Division prepared a papers astir the imaginable usage of Pegasus for a regular briefing for Mr. Wray. There is not wide grounds successful the redacted documents that the Pegasus accusation yet was included successful his briefing, oregon what Mr. Wray’s views connected the substance were.

On July 22, 2021, according to the government’s ineligible little successful the FOIA lawsuit precocious past month, the determination was made to “cease each efforts regarding the imaginable usage of the NSO product.”