Israeli Spyware Maker NSO Group Asks SCOTUS For Sovereign Immunity

Authored by Matthew Vadum via The Epoch Times (emphasis ours),

Israeli spyware developer NSO Group is urging the Supreme Court to recognize it as a foreign government agent, a move it says would give it immunity under U.S. laws restricting lawsuits against foreign countries.

NSO’s leading software product, Pegasus, allows operators to clandestinely surveil a suspect’s mobile phone—access contacts and messages, as well as the built-in camera, microphone, and location history. NSO says it deals only with government law enforcement agencies and that all sales are approved by the Israeli Defense Ministry. It refuses to identify its clients.

WhatsApp parent Facebook, which renamed itself Meta Platforms Inc., filed suit against NSO in 2019, claiming the company targeted about 1,400 users of its encrypted messaging service using sophisticated spyware. Meta wants to prevent NSO from accessing Facebook platforms and servers and is seeking unspecified damages.

WhatsApp accused NSO of wrongdoing in a statement.

“NSO’s spyware invades the rights of citizens, journalists, and human rights activists around the globe, and their attacks must be stopped,” WhatsApp said. Two U.S. courts have already rejected “NSO’s contrived bid for immunity, and we believe there is no reason for the Supreme Court to hear their last-ditch attempt to avoid accountability.”

Apple sued NSO in 2021, claiming it needed to do so to prevent NSO from hacking its products, calling the company’s employees “amoral 21st century mercenaries.”

Critics claim some NSO clients, including Poland, Saudi Arabia, and Jordan have used the company’s products to spy on adversaries and repress dissent. The U.S. Department of Commerce blacklisted NSO, saying its products have played a role in “transnational repression.”

But NSO, which is close to the Israeli government, says it cannot control what users do with its products and that it has done nothing wrong.

“NSO products are used exclusively by government intelligence and law enforcement agencies to fight crime and terror,” the company’s website states. Its products have been used to prevent car and suicide bombings, break up pedophilia rings, and help locate survivors trapped under collapsed buildings, the website continues.

Bestowing sovereign immunity on NSO would make it harder for WhatsApp to move forward and could shield NSO from a discovery process that could identify its customers and trade secrets.

The petition (pdf) in NSO Group Technologies Ltd. v. WhatsApp Inc., court file 21-1338, was docketed April 8 by the Supreme Court. The company is appealing an adverse ruling by the U.S. Court of Appeals for the 9th Circuit.

On Nov. 8, 2021, the 9th Circuit voted 3-0 (pdf) to deny NSO’s motion to throw out the lawsuit.

Circuit Judge Danielle Forrest, who was appointed by then-President Donald Trump, wrote: “[t]he question presented is whether foreign sovereign immunity protects private companies. The law governing this question has roots extending back to our earliest history as a nation, and it leads to a simple answer—no. Indeed, the title of the legal doctrine itself—foreign sovereign immunity—suggests the outcome.”

But in its petition, NSO states that many national governments, including the United States, rely on private contractors to carry out or support core governmental activities.

“If such contractors can never seek immunity, as the Ninth Circuit held, then the United States and other countries may soon find their military and intelligence operations disrupted by lawsuits against their agents,” the petition continues.

The respondents, WhatsApp and Meta, have until May 9, to file a response with the Supreme Court.