As recently as early last year, the Federal Bureau of Investigation was considering using NSO Group’s infamous Pegasus spyware in criminal investigations, reports The New York Times. Between late 2020 and early 2021, agency officials were in the “advanced” stages of developing plans to brief FBI leadership on the software, according to internal bureau documents and court records seen by The Times. Those documents also reveal the bureau had developed guidelines for federal prosecutors detailing how the FBI’s use of Pegasus would need to be disclosed during court cases.
Based on the documents, it’s unclear if the FBI had considered using the spyware against American citizens. Earlier this year, The Times found that the agency had tested Phantom, a version of Pegasus that can target phones with US numbers.
By July 2021, the FBI eventually decided not to use Pegasus in criminal investigations. That’s the same month that The Washington Post published an investigation that claimed the software had been used to compromise the phones of two women close to murdered Saudi journalist Jamal Khashoggi. A few months later, the US placed Pegasus creator NSO Group on the Commerce Department’s entity list, a designation that prevents US companies from conducting business with the firm. Despite the decision not to use Pegasus, the FBI indicated it remains open to using spyware 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,” states a legal briefing filed by the FBI last month.
The documents appear to present a different picture of the agency’s interest in Pegasus than the one FBI Director Chris Wray shared with Congress during a closed-doors hearing this past December. “If you mean have we used it in any of our investigations to collect or target somebody, the answer is - as I’m assured - no,” he said in response to a question from Senator Ron Wyden. “The reason why I hedge, and I want to be transparent, that we have acquired some of their tools for research and development. In other words, to be able to figure out how bad guys could use it, for example.”