In April of this year, the FBI began an investigation to determine who was using illegal software to spy from within the United States on persons in Mexico.
The software was illegal because its Israeli manufacturer, a company called NSO, had previously crafted other software for the FBI, which President Joseph Biden had put on a Department of Commerce blacklist. Stated differently, because NSO manufactured software that enabled the government to violate the Fourth Amendment, all NSO-manufactured products are prohibited from use in the U.S.
Yet, somehow NSO had bypassed the federal embargo on its products and someone was using at least one of those products unlawfully.
The FBI investigation determined that the user of the illegal software was: THE FBI ITSELF.
Here is the backstory.
During the Trump administration, the FBI paid $5 million to NSO for a license to use its "zero-click" surveillance software called Pegasus. Zero-click is 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 leased by its customer, the American importer of the software.
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 their personal data from their devices. The FBI later claimed that these experiments were harmless, as it never used the downloaded data.
When congressional investigators learned 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 senators that the FBI only purchased Pegasus "to be able to figure out how bad guys could use it." Is that even believable?
In follow-up testimony in March 2022, Wray elaborated that Pegasus was used for governmental needs "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.
Thereafter, dozens of internal FBI memos and court records caused Sen. Ron Wyden, Democrat of Oregon and a member of the Senate Intelligence Committee, to question the veracity of Wray’s testimony. Wyden’s skepticism provoked the FBI reluctantly to reveal that it had ordered its own version of Pegasus, called Phantom, which NSO tailor-made for hacking American mobile devices.
In July 2021, when Biden personally put a stop to the FBI’s use of all NSO products, the congressional intelligence committees assumed that that was the end of it. Biden and his advisers concluded that NSO products were too tempting for the FBI and its intelligence community cousins, as the use of this software without a search warrant was a violation of the Fourth Amendment to the Constitution.
The Fourth Amendment 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 only be issued 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. As well, the warrant must specifically describe the place to be searched and things to be seized. Warrants can only be issued 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 needs – 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.
After The New York Times revealed the results of Freedom of Information Act requests for memos and court documents pertaining to NSO, they showed a vast determination by FBI management to offer NSO products to FBI agents and other federal law enforcement and surveillance personnel.
Last week, the FBI found the importer of the illegal NSO software: its own customer who leases the New Jersey warehouse where the illegal Pegasus software is stored. And it revealed that it had used the NSO product before realizing it was illegal. Before realizing it was illegal? Who would believe that?
The FBI was using software illegally imported into the US by its regular customer who had been banned from importing the product.
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 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?
The whole purpose of the Fourth Amendment is to protect the right to be left alone and to compel the government to focus on solving crimes, not predicting them.
Today’s FBI has agents who are professional computer hackers. Today’s FBI has morphed from crime fighting to crime anticipating. Today’s FBI is effectively a domestic spying operation nowhere authorized in the Constitution. It should be defunded and disbanded.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the US Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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