On Monday, the US Supreme Court allowed Meta Platforms’s WhatsApp to proceed with its lawsuit against Israel’s NSO Group for allegedly exploiting
a bug in the messaging app to install spy software and surveil over 1,400 people, including journalists,
human rights activists, and dissidents. NSO had attempted to appeal a lower court’s ruling that the lawsuit could move forward, claiming immunity as an agent for foreign governments,
but the Biden administration argued that a private entity acting as an agent of a foreign state should not be entitled to immunity. The court ultimately dismissed NSO’s appeal, allowing the lawsuit to continue.
Meta asserted that NSO’s spyware has enabled cyberattacks on human rights activists, journalists, and government officials, and that such activities violate US law and should be subject to legal action. No reply was received when a comment was requested from an attorney representing NSO.
In 2019, WhatsApp filed a lawsuit against NSO, alleging that the latter had illegally accessed their servers six months prior in order to deploy the Pegasus software on the phones of their victims without authorization. The suit sought both injunctive relief and financial compensation.
NSO has stated that Pegasus is designed to aid law enforcement and intelligence agencies in combating crime and safeguarding national security, with the aim of apprehending terrorists, pedophiles, and serious offenders.
NSO Group stated in court documents that WhatsApp’s alert to users hindered a foreign government’s investigation into an Islamic State member, who was using the app to plot a strike.
Moreover, the company’s spyware was supposedly employed by the Saudi government to target the people close to Washington Post journalist Jamal Khashoggi before he was slain at the Saudi consulate in Istanbul.
In 2020, a trial judge denied NSO Group immunity based on their conduct, a common law doctrine that protects foreign officials acting in their official capacity.
The 9th US Circuit Court of Appeals upheld this ruling in 2021, stating it was an “easy case” due to the Foreign Sovereign Immunities Act, which took precedence over the common law. The Act does not protect NSO Group from liability, despite their licensing of Pegasus and providing technical support.
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In 2020, NSO’s request for “conduct-based immunity” (a common law doctrine protecting foreign officials acting in their official capacity) was denied by a trial judge.
The ruling was upheld in 2021 by the San Francisco-based 9th US Circuit Court of Appeals, who referred to it as an “easy case” due to NSO’s mere licensing of Pegasus and offering technical assistance.
WhatsApp’s lawyers argued that private entities like NSO are “categorically ineligible” for foreign sovereign immunity. The Biden administration in a filing the same year agreed with the 9th Circuit’s decision, but stated that they were not ready to agree that the Foreign Sovereign Immunities Act (FSIA) eliminates any form of immunity under common law.
Court documents have revealed that 1,400 WhatsApp users had their accounts accessed through the use of the Pegasus tracking software, which surreptitiously transforms their phones into spy devices. In 2021,
a joint investigation conducted by 17 media outlets, headed by the Paris-based non-profit Forbidden Stories, discovered the software was employed in attempts to hack the smartphones of journalists, government representatives, and human rights advocates on a global scale.
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In response to these findings, the US government placed NSO and Israel’s Candiru on a blacklist in November 2021, accusing them of providing spyware to governments that maliciously targeted journalists, activists, and other individuals. Furthermore, Apple has taken legal action against NSO, claiming they violated the user terms and services agreement.