FIGHTING PRIVATE SECTOR OFFENSIVE ACTORS (PSOAs)

Spyware is designed to enable secret, unauthorized access to an electronic device without being detected. It can be used to seize control of a person’s phone or computer, potentially exposing where they are, the identity of their sources, their private communications, and more.

Some spyware tools infect a target’s phone via spoof messages that look legitimate and trick the recipient into clicking on a malicious link. Others can access a target’s device without their taking any action.

Governments use spyware for national security, intelligence and law enforcement, many of which may be legitimate. But the same technology is being used to target journalists. Journalists rely on mobile phones, computers, and internet networks to track breaking news, communicate with sources and colleagues and publish stories. Spyware threatens their ability to do so privately and securely. Journalists fear that they- or their sources could be compromised or harmed following a spyware attack, causing concern that targeted surveillance is encouraging self-censorship. If government officials can spy on the reporters investigating them without oversight or penalty, press freedom and the public’s right to information is at risk.  

Governments and intergovernmental bodies have taken some steps to address the unregulated proliferation of spyware and its wrongful use. In 2019 the UN special rapporteur on freedom of opinion and expression issued a report proposing a legal and policy framework for regulation accountability and transparency within the private surveillance industry. In 2020, the U.S. State Departments issued guidance for companies though it is not binding.

The European Union has separately agreed on export control regulations for surveillance technology which, once enacted will promote transparency, but represent only the minimum EU member states and companies must do to prevent abuse.

As a result, there still remain few effective barriers preventing governments with demonstrated histories of surveillance and curtailing the free press from acquiring sophisticated surveillance technology.

It is essential that governments and companies act immediately to stop the abuse of spyware against journalists.

Governments must adopt and enforce legislation to

• bar the use of spyware to surveil journalists and media outlets;
• bar the export of transfer of surveillance technology and expertise to governments with poor press freedom records, including via third parties.
• bar state agencies from purchasing or licensing the export of surveillance technology from companies that sell to governments with poor press freedom records, or that lack mechanisms to prevent their clients from targeting the press in line with the UN Guiding Principles on Business and Human Rights.
• Establish independent oversight of state-supported use of spyware and hacking tools and enable accountability and remedy in documented cases of abuse against the media.
• Sanction actors who have spied or facilitated spying on journalists through the sale or use of spyware.
• Require public reporting and consultation about surveillance purchasers and exports.
• Document the abuse of surveillance technology against journalists in government human rights reports.