EFF to Court: Deny Foreign Sovereign Immunity to DarkMatter for Hacking Journalist

When governments or private companies target someone with malware and facilitate the abuse of their human rights, the victim must be able to hold the bad actors accountable. That’s why, in October, EFF requested that a federal court consider its amicus brief in support of journalist Ghada Oueiss in her lawsuit against DarkMatter, a notorious cyber-mercenary company based in the United Arab Emirates. Oueiss is suing the company and high-level Saudi government officials for allegedly hacking her phone and leaking her private information as part of a smear campaign.

EFF’s brief argues that private companies should not be protected by foreign sovereign immunity, which limits when foreign governments can be sued in U.S. courts. Hundreds of technology companies sell surveillance and hacking as a product and service to governments around the world. Some companies sell surveillance tools to governments—in 45 of the 70 countries that are home to 88% of the world’s internet users—and others, like DarkMatter, do the surveillance and hacking themselves.

DarkMatter’s hacking has serious consequences. In her lawsuit, Oueiss recounts being targeted by thousands of tweets attacking her, with accounts posting stolen personal photos and videos, some of which were doctored to further humiliate her. And earlier this month, EFF filed a lawsuit against DarkMatter because the company hacked Saudi human rights activist Loujain AlHathloul, leading to her kidnapping by the UAE and extradition to Saudi Arabia, where she was imprisoned and tortured.

U.S. companies are on both ends of DarkMatter’s misconduct—some are targets, like Apple and iPhone users, and other companies are vendors. Two U.S. companies sold zero-click iMessage exploits to DarkMatter, which it used to create a hacking system that could infiltrate iPhones around the world without the targets knowing a thing.

Human rights principles must be enforced, and voluntary mechanisms have failed these victims. U.S. courts should be open to journalists and activists to vindicate their rights, especially when there is a connection to this country—the smear campaign against Oueiss occurred here in part. EFF welcomed the Ninth Circuit Court of Appeals’ recent ruling that spyware vendor NSO Group, as a private company, did not have foreign sovereign immunity from WhatsApp’s lawsuit alleging hacking of the app’s users. Courts should similarly deny immunity to DarkMatter and other surveillance and hacking companies who directly harm Internet users around the world.