Biden issues executive order to prohibit government from using commercial spyware, with exceptions

 March 29, 2023

President Joe Biden issued an executive order on Monday that purports to ban all U.S. government departments and agencies from using commercial spyware if that technology poses a personal or national security risk to U.S. citizens or the federal government, Just the News reported.

The order, however, is vaguely worded and doesn't specify which spyware programs would be banned or which would be permitted.

Spyware is the term for programs that can be surreptitiously installed on a target's computer or device to monitor activity and report that information back to a third party. It can be utilized for rather benign purposes but, obviously, also provides great potential to be used for nefarious purposes as well.

Commercial spyware banned, with some exceptions

President Joe Biden's executive order referenced the "development of an international technology ecosystem" that allows for the free flow of information while protecting basic human rights, and said, "The growing exploitation of Americans’ sensitive data and improper use of surveillance technology, including commercial spyware, threatens the development of this ecosystem."

He accused foreign governments and individuals of using such commercial spyware against the U.S. government and citizens as well as "to target and intimidate perceived opponents; curb dissent; limit freedoms of expression, peaceful assembly, or association; enable other human rights abuses or suppression of civil liberties; and track or target United States persons without proper legal authorization, safeguards, or oversight."

Biden asserted a "fundamental national security and foreign policy interest" in countering such actions originating from abroad and the establishment of "robust protections and procedures" to ensure it doesn't similarly happen domestically.

"Therefore, I hereby establish as the policy of the United States Government that it shall not make operational use of commercial spyware that poses significant counterintelligence or security risks to the United States Government or significant risks of improper use by a foreign government or foreign person," the president said.

Administration officials provide few additional details

The order then broadly outlined the "prohibition on operational use" but included an exception for "the use of commercial spyware for purposes of testing, research, analysis, cybersecurity, or the development of countermeasures for counterintelligence or security risks, or for purposes of a criminal investigation arising out of the criminal sale or use of the spyware."

It also outlined the limited ways in which departments and agencies could procure commercial spyware for the excepted purposes and imposed reporting requirements on all department and agency heads with regard to any prior and current use of commercial spyware.

In a background press call Monday morning, a pair of unnamed "senior administration officials" attempted to further explain President Biden's order to reporters but were just as vague about the details as the order itself is.

Nonetheless, it was revealed by one of those officials that the intent of the order was both to protect against foreign misuse of commercial spyware against the U.S. and to prohibit the same domestically, as well as to "serve as a concrete demonstration of U.S. leadership and commitment to countering the misuse of commercial spyware and other surveillance technology" ahead of the ongoing Summit for Democracy this week that Biden is co-hosting.

The second anonymous official spoke more directly about how this particular order ties in with the Summit for Democracy and hinted that more executive orders could soon be forthcoming, and said, "In addition to the announcement today with the executive order, we plan to release an additional set of announcements focusing on technology, including with respect to countering the misuse thereof."

Both FBI and DEA known to use commercial spyware

Just the News surmised that this order from President Biden, at least in part, might be in response to bipartisan concerns and critiques expressed about the revelation last year that the FBI had obtained licensing for a commercial spyware program known as Pegasus, which has prompted suspicions that the federal law enforcement agency could be using it against U.S. citizens -- though the Bureau has insisted it is only testing the program to learn how it works so similar programs can be guarded against.

Likewise, a reporter pointed out during the background call that the U.S. Drug Enforcement Agency uses a commercial spyware program known as Graphite, but the unnamed officials on that call only referenced the vaguely worded order on whether or not that would be prohibited and declined to provide a direct answer.

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