NSO turns to US Supreme Court for immunity in WhatsApp lawsuit

JERUSALEM (AP) — Israeli spyware maker NSO Group is turning to the U.S. Supreme Court as it seeks to avoid a high-profile lawsuit brought by messaging service WhatsApp.

In a Supreme Court filing, NSO said it should be recognized as an agent of a foreign government and therefore be entitled to immunity under US law limiting suits against foreign countries. The application appeals two previous Federal Court decisions that rejected similar arguments by the Israeli company.

WhatsApp’s parent company Facebook, now called Meta Platforms Inc., sued NSO in 2019 for allegedly targeting some 1,400 users of its encrypted messaging service with highly sophisticated spyware. He is trying to block NSO from Facebook platforms and servers and is seeking unspecified damages.

Granting sovereign immunity to NSO would greatly hamper WhatsApp’s case. It could also provide protection against a potentially risky discovery process that could reveal its customers and technology secrets. NSO is seeking to have the entire case dismissed.

In its motion, NSO said lower courts had given mixed opinions on sovereign immunity over the years and that it was crucial for the Supreme Court to rule on an issue that has broad national security implications. governments around the world.

“Many countries, including the United States, rely on private contractors to conduct or support core government activities,” he wrote in the April 6 filing. “If such contractors can never seek immunity…then the United States and other countries may soon see their military and intelligence operations disrupted by lawsuits against their agents.”

NSO’s flagship product, Pegasus, allows operators to covertly infiltrate a target’s mobile phone, gain access to messages and contacts, camera and microphone, and location history. He says he sells the product only to government law enforcement agencies to catch criminals and terrorists and all sales are approved by the Israeli Defense Ministry. It does not identify its customers.

But critics say a number of clients, 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 of the users linked to 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 no access to the data they collect, although it claims to have safeguards in place to prevent abuse. Critics say the guarantees are insufficient.

“NSO spyware invades the rights of citizens, journalists and human rights activists around the world and their attacks must be stopped,” WhatsApp said in a statement.

“Two US courts have already denied NSO’s request for artificial immunity and we believe there is no reason for the Supreme Court to hear their last ditch attempt to avoid accountability,” he said. said, adding that several human rights groups and tech companies said. granting immunity to spyware companies “would be dangerous for the world”.

The WhatsApp case is part of a series of legal battles plaguing NSO. Last year, Apple filed a lawsuit it says is aimed at stopping NSO from hacking into products. He claimed that Pegasus had affected a small number of iPhone users around the world, calling NSO employees “amoral mercenaries of the 21st century”.

Last year, NSO was also blacklisted by the US Department of Commerce, limiting its access to US technology. US officials said the company’s products were complicit in “transnational repression”.

NSO seems to face a formidable challenge. To begin with, the Supreme Court agrees to consider only about 1% of the applications submitted to it.

It could be months before the court decides to re-examine the case. But even if that were the case, NSO would have to convince the court that he is a state agent and entitled to immunity.

Eugene Kontorovich, an Israeli-American professor at George Mason University’s Scalia Law School and director of its Center for Middle East and International Law, said the case was “very interesting” and “very serious”. But he said he was skeptical NSO would win.

“It’s a software company. They are creating a product that has been licensed to foreign governments for governments to use,” he said. “An agent is usually something of a much higher level.”