For the first time, US federal courts are going to count how often judges let law enforcement plant spyware on someone’s phone to read their messages. The Administrative Office of the U.S. Courts told Sen. Ron Wyden this week that it will start tracking a new “spyware/hacking” surveillance category, and an AO spokesperson confirmed the change to TechCrunch. The numbers will first appear in the 2028 Wiretap Report — data collected during 2028 and published the year after.
Why phone spyware never showed up in the wiretap numbers
The Wiretap Report is an annual public accounting of how many wiretaps American judges authorised, broken down by federal versus state courts, by state, by the crime under investigation, and by the kind of tap — audio, oral, or the electronic interception of texts and emails moving across a provider’s network. It has run for years. Spyware has never had a line of its own in it.
That gap matters more now than it did a decade ago, because of what encryption changed. When your messages travel as plaintext through a carrier’s network, an old-fashioned electronic tap at the provider gets them. When they travel through Signal or WhatsApp, it does not. The way around that is to compromise the endpoint — the phone in your hand — and read the messages before they are encrypted or after they are decrypted. So the shift toward encrypted messaging did not so much end interception as move it onto the device, and the reporting never followed it there.
Sen. Ron Wyden, who has pushed for this data since 2017, welcomed the change. “The American people remain largely in the dark about the different ways that the government is spying on them,” he said in a statement to TechCrunch, adding that Congress should go further and pass his Government Surveillance Transparency Act, a bill reintroduced earlier this year.
What the new figure will and will not tell you
Be careful about how much this covers. The new category counts only spyware used for interception — real-time capture of calls and messages, including on services such as Signal and WhatsApp. It does not count the far more common scenario of authorities using a forensic tool to break into a seized phone and pull out what is already stored on it: photos, files, location history. That is legally a search, not a wiretap, and it sits under a different process that still gets no equivalent public tally.
So the number that lands in 2029 will be a floor, not a total. It will also arrive with a long lag: the change was announced in 2026, applies to data gathered in 2028, and reaches the public in 2029. The Administrative Office’s explanation for the delay is procedural — the report is assembled from forms filed by courts across the country, and those forms have to be revised before a new category can appear on them.
Even so, this is the kind of transparency that only ever gets added under pressure, and it is a real improvement for anyone who cares about what happens to the device in their pocket. Until now, the question of how often American courts authorise hacking a phone has had no published answer at all. That is worth something even at a three-year delay.
Source: TechCrunch
