JERUSALEM (AP) — Israeli spyware maker NSO Group is moving the US Supreme Court as it seeks to close a high-profile lawsuit filed by the WhatsApp messaging service.
In a filing to the Supreme Court, NSO said it should be recognized as a foreign government agent and therefore entitled to immunity under US law limiting lawsuits against foreign countries. The request appeals a pair of earlier federal court decisions that had rejected similar arguments by the Israeli company.
WhatsApp parent Facebook, now called Meta Platforms Inc., sued NSO in 2019 for targeting nearly 1,400 users of its encrypted messaging service with highly sophisticated spyware. It is trying to block NSO from the Facebook platform and servers and seeks unspecified damages.
Giving Sovereign immunity to NSOs will be a big hindrance in the case of WhatsApp. It can provide protection against potentially risky search processes that can reveal its customers and technical secrets. NSO is demanding that the entire matter be dismissed.
In its petition, the NSO said that lower courts have over the years given mixed opinions on sovereign immunity and that it was important for the Supreme Court to rule on an issue that had great national security implications for governments around the world. Huh.
“Many nations, including the United States, rely on private contractors to conduct or support core government activities,” it wrote in an April 6 filing. “If such contractors can never seek immunity … then the United States and other countries may soon be obstructed by lawsuits against their agents for their military and intelligence operations.”
NSO’s flagship product, Pegasus, allows operators to secretly infiltrate a target’s mobile phone, gain access to messages and contacts, the camera and microphone, and location history. It says it only sells products to government law enforcement agencies to catch criminals and terrorists and that all sales are approved by Israel’s Ministry of Defense. It does not identify its customers.
But critics say many customers, including Saudi Arabia, the United Arab Emirates, Jordan and Poland, have abused the system to spy on critics and stifle dissent. WhatsApp says at least 100 users associated with its lawsuit were journalists, rights activists and members of civil society.
NSO says it has no control over how its customers use the product and has no access to the data they collect, although it claims it has safeguards in place to prevent abuse. Critics say the security measures are inadequate.
“NSO’s spyware attacks the rights of citizens, journalists and human rights activists around the world and their attacks must stop,” WhatsApp said in a statement.
“Two United States courts have already rejected NSO’s hypothetical bid for immunity and we believe the Supreme Court has no reason to hear their final attempt to evade accountability,” it said. saying that many human rights groups and tech companies have said granting immunity to spyware companies “would be dangerous to the world.”
The WhatsApp case is one in a series of legal battles plaguing NSO. Apple filed a lawsuit last year saying it aimed to prevent NSO from breaking into products. It claimed that Pegasus had affected a small number of iPhone users worldwide, calling NSO employees “the mercenaries of the 21st century”.
NSO was also blacklisted by the US Commerce Department last year, limiting its access to US technology. US officials said the company’s products were involved in “international repression”.
NSO is facing a big challenge. For starters, the Supreme Court has agreed to consider only 1% or more of the requests placed before it.
It could take months before the court decides to review the case. But even if it happens, the NSO will have to convince the court that he is a state agent and is entitled to exemption.
Eugene Kontorovich, an Israeli-American professor at George Mason University Scalia Law School and director of the Center for Middle East and International Law, said it was a “very interesting” and “very serious” case. But he said he doubted the NSO would prevail.
“They are a software company. They make a product that has been licensed to foreign governments and that governments can use,” he said. “An agent is usually of a very high standard.”