Hustler Words – A significant shift is on the horizon for digital privacy and government transparency in the United States. For the first time, federal courts are set to publicly disclose the frequency with which judges authorize the use of advanced spyware and hacking tools by law enforcement agencies. This unprecedented move, slated to begin in 2029, promises to shed light on a long-opaque area of federal surveillance, addressing concerns that have persisted for decades regarding the government’s deployment of invasive network investigation techniques.
While federal agencies, notably the FBI, have reportedly utilized hacking techniques and spyware since as early as 1998, the public has historically been denied any comprehensive data on the scale of their deployment. This upcoming change, however, specifically targets the use of spyware for intercepting real-time communications.
The U.S. judiciary will commence this new era of transparency by publicly detailing, starting in 2029, the exact number of judicial authorizations for wiretaps executed through hacking tools and spyware. These tools are officially categorized by federal authorities as "network investigating techniques," or NITs. This data will be integrated into the annual Wiretap Reports, a publication that has provided insights into surveillance practices for nearly two decades.
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For nearly two decades, the Administrative Office of the U.S. Courts, which oversees the federal judiciary’s operations, has published annual Wiretap Reports. These existing reports meticulously document the number of authorized wiretaps each year, categorizing them by the authorizing authority (federal or state), geographic location, and the nature of the crime under investigation. Wiretaps, by their nature, grant law enforcement live access to an individual’s calls, messages, and other digital communications. Due to their profoundly invasive impact on privacy, a stringent evidentiary threshold must be met before a judge will sanction such a measure. Consequently, wiretaps are authorized far less frequently than standard search warrants, yet their scope can be immense; a single operation years ago reportedly amassed millions of text messages over a three-month period.
These comprehensive annual reports already delineate various forms of authorized wiretaps, ranging from audio intercepts capturing real-time voice communications, to "oral taps" employing physical microphones for eavesdropping, and electronic surveillance targeting text messages, emails, and other digital transmissions as they traverse network providers.
Confirmation of this procedural update came from the Administrative Office of the U.S. Courts, which informed Democratic Senator Ron Wyden that the new "spyware/hacking" surveillance category would be integrated into the 2028 Wiretap Report, slated for publication in 2029. A spokesperson for the Administrative Office elaborated in an email to Hustler Words, stating, "The Wiretap Report is compiled from individual forms submitted from throughout the country and throughout the year. Before the new data can appear in the annual report, reporting forms and procedures need to be updated to accommodate the new categories."
Crucially, this forthcoming data will exclusively pertain to instances where authorities employ spyware for intercepting live communications, such as calls and messages on platforms like Signal and WhatsApp. It will not encompass scenarios where tools are used to remotely breach a device to extract stored data, including images, files, or location history. The former constitutes a wiretap, while the latter falls under the purview of a search warrant – a distinct legal framework outside the scope of these particular disclosures.
Senator Ron Wyden, a vocal critic of what he terms "the unnecessary secrecy around electronic surveillance orders" and a long-standing advocate for public disclosure since 2017, lauded this development. In a statement provided to Hustler Words, Wyden remarked, "The American people remain largely in the dark about the different ways that the government is spying on them. I am thankful that the federal courts agreed to collect and publish data about hacking, but Congress must go further and pass my Government Surveillance Transparency Act," referencing a legislative proposal he and colleagues reintroduced earlier this year aimed at broader surveillance transparency.
Privacy advocates and experts are hailing this forthcoming transparency as a monumental victory. Eva Galperin, the director of cybersecurity at the Electronic Frontier Foundation and a leading authority on government spyware, commented, "Up until now, we have only been able to guess at the size of the problem." Galperin emphasized that public statistics would significantly bolster accountability for potential abuses of spyware, making it considerably more difficult for authorities to deny their deployment. She elaborated, "Being able to point to a report saying that spyware was used X number of times will help with accountability, especially if it turns out that number is quite high. It’s hard to say that you’re using spyware as a surgical tool when you’ve deployed it tens of thousands of times." Similarly, Brett Max Kaufman, a senior counsel at the American Civil Liberties Union’s Center for Democracy, characterized the change as "an important and long-overdue step forward for transparency around government hacking and should lead to better-informed policy and law around these issues going forward."
This move towards greater transparency aligns the U.S. with other nations, such as Italy, which already provide granular data on spyware usage. For instance, publicly accessible data reveals that Italian authorities deployed spyware against 4,321 targets in 2023 alone.
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