Zero-click spyware: Enemy of the press
David Kaye addresses a press conference in Mexico City, on December 4, 2017. At the time, he investigated surveillance as the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. (AFP/Ronaldo Schemidt)

David Kaye: Here’s what world leaders must do about spyware

In late June, the general counsel of NSO Group, the Israeli company responsible for the deeply intrusive spyware tool, Pegasus, appeared before a committee established by members of the European Parliament (MEPs). Called the PEGA Committee colloquially, the Parliament established it to investigate allegations that EU member states and others have used “Pegasus and equivalent spyware surveillance software.” This was to be PEGA’s first major news-making moment, a response to the very public scandals involving credible allegations of Pegasus use by Poland, Hungary and, most recently, Spain.

The hearing started unsurprisingly enough. Chaim Gelfand, the NSO Group lawyer, laid out the company line that Pegasus is designed for use against terrorists and other criminals. He promised that the company controlled its sales, developed human rights and whistleblowing policies, and took action against those governments that abused it. He wanted to “dispel certain rumors and misconceptions” about the technology that have circulated in “the press and public debate.” He made his case.

Then, surely from NSO Group’s perspective, it went downhill. MEP after MEP asked specific questions of NSO Group. For instance: if Pegasus is sold only to counter terrorism or serious crime, how did it come to be used in EU member states? How did it come to be used to eavesdrop on staffers at the European Commission, another public allegation? Can NSO provide examples of when it terminated contracts because a client misused Pegasus? Can NSO clarify what data it has on its clients’ uses of Pegasus? How does NSO Group know when the technology is “abused”? More personally: How come you spied on me?

MEPs were angry. Increasingly their questions became more intense, more personal, more laced with moral and legal outrage. And this tenor only deepened over the course of the hearing, as the NSO lawyer stumbled through his points and regularly resorted to the line that he could not speak to specific examples, cases or governments. Few, if any, seemed persuaded by the NSO Group claim that it has no insight into the day-to-day use of the spyware by the “end-user”. To the contrary, the PEGA hearing ended with one thing clear: NSO Group faces not only anger but the reality of an energized set of legislators.

More than a year after release of the Pegasus Project, the global reporting investigation that disclosed massive pools of potential targets for Pegasus surveillance, the momentum for action against spyware like Pegasus is gathering steam. 

Read CPJ’s complete special report: When spyware turns phones into weapons

In 2019, in my capacity as a U.N. Special Rapporteur, I issued a report to the United Nations Human Rights Council that surveyed the landscape of the private surveillance industry and the vast human rights abuses it facilitates, calling for a moratorium on the sale, transfer and use of such spyware. At the time, few picked up the call. But today, with extensive reporting of the use of spyware tools against journalists, opposition politicians, human rights defenders, the families of such persons, and others, the tide seems to be turning against Pegasus and spyware of its ilk.

The U.N. High Commissioner for Human Rights, several U.N. special rapporteurs, the leaders of major human rights organizations, and at least one state, Costa Rica, have joined the call for a moratorium. The Supreme Court of India is pursuing serious questions about the government’s use of Pegasus. The United States Department of Commerce placed NSO Group and another Israeli spyware firm on its list of restricted entities, forbidding the U.S. government from doing any business with them. Apple and Facebook’s parent company Meta have sued NSO Group for using their infrastructure to hack into individual phones.

All of these steps suggest not only momentum but the elements of a global process to constrain the industry. They need to be transformed into a long-term strategy to deal with the threats posed to human rights by intrusive, mercenary spyware. State-by-state responses, or high-profile corporate litigation, will generate pain for specific companies and begin to set out the normative standards that should apply to surveillance technologies. But in order to curb the industry as a whole, a global approach will be necessary. 

In principle, spyware with the characteristics of Pegasus – the capability to access one’s entire device and data connected to it, without discrimination, and without constraint – already violates basic standards of necessity and proportionality under international human rights law. On that ground alone, it’s time to begin speaking of not merely a moratorium but a ban of such intrusive technology, whether provided by private or public actors. No government should have such a tool, and no private company should be able to sell such a tool to governments or others.

In the land of reality, however, a ban will not take place immediately. Even if a coalition of human rights-friendly governments could get such negotiations toward a ban off the ground, it will take time.

Here is where bodies like the European Parliament and its PEGA Committee – and governments and parliamentarians around the world – can make an immediate difference. They should start to discuss a permanent ban while also entertaining other interim approaches: stricter global export controls to limit the spread of spyware technology; commitments by governments to ensure that their domestic law enables victims of spyware to bring suits against perpetrators, whether domestic or foreign; and broad agreement by third-party companies, such as device manufacturers, social media companies, security entities and others, to develop a process for notification of spyware breaches especially to users and to one another. 

Some of this would be hard to accomplish. It’s not as if the present moment, dominated as it is by tensions like Russian aggression against Ukraine, is conducive to international negotiations. Some steps could be achieved by governments that should be concerned about the spread of such technologies, already demonstrated by U.S. and European outrage. Either way, governments and activists can begin to lay the groundwork, defining the key terms, highlighting the fundamental illegality of spyware like Pegasus, taking steps in domestic law to ensure strict controls on export and use. 

There is precedent for such action in the global movement to ban landmines in the 1990s, which started with little hope of achieving a ban, focused instead on near-term controls. Ultimately human rights activists and like-minded governments were able to hammer out the Ottawa Convention to ban and destroy anti-personnel landmines in 1997. It is, at least, a process that activists and governments today could emulate and modify.

Human rights organizations and journalists have done the work to disclose the existence of a major threat to freedom of expression, privacy, and space for public participation. It is now the duty of governments to do something about it.