WHATSAPP CAN PURSUE MALWARE LAWSUIT AGAINST ISRAEL’S NSO GROUP -US APPEALS COURT

Tue 09 November 2021:

A US appeals court has determined that WhatsApp can proceed with its lawsuit against NSO Group, claiming that foreign governments’ immunity from civil litigation in US courts enjoyed by foreign governments does not extend to the private Israeli surveillance company.

WhatsApp is suing NSO Group for allegedly using malware to acquire unauthorised access to around 1,400 mobile devices on its servers in California, in violation of US state and federal law.

After a recent investigation by major media sources revealed that its Pegasus malware was deployed by security agencies and autocratic governments in various countries, the Israeli firm company has generated outcry from rights groups.

On Monday, a three-judge panel on the San Francisco-based Ninth Circuit Court of Appeals affirmed a lower court’s decision to allow WhatsApp’s lawsuit to proceed, stressing that NSO Group does not qualify for sovereign immunity even if its clients are foreign government agencies.

“NSO claims that it should enjoy the immunity extended to sovereigns because it provides technology used for law-enforcement purposes and law enforcement is an inherently sovereign function,” Judge Danielle Forrest, who was appointed by ex-President Donald Trump, wrote in the ruling.

“Whatever NSO’s government customers do with its technology and services does not render NSO an ‘agency or instrumentality of a foreign state,’ as Congress has defined that term. Thus, NSO is not entitled to the protection of foreign sovereign immunity.”

NSO’s Pegasus spyware was identified on the phones of six Palestinian human rights activists, three of whom are linked with civil society groups recently blacklisted by Israel as “terrorist organizations,” according to the non-profit Frontline Defenders.

In a joint technical report, Amnesty International and the Citizen Lab at the University of Toronto confirmed the findings.

NSO Group was sued for the first time in 2019 by Facebook Inc, which just changed its name to Meta and owns WhatsApp.

WhatsApp accused the Israeli corporation of violating its terms of service and harming the messaging platform’s “reputation, public trust and goodwill” through hacking activities in its first court lawsuit.

The ruling by the San Francisco court comes as NSO Group’s operations are once again under examination, and less than a week after the Biden administration sanctioned the company after accused it of supporting “transnational repression” with its spyware.

Meanwhile, a WhatsApp spokeswoman hailed the US court’s judgment as “an important step in holding NSO accountable for its attacks against journalists, human rights defenders, and government leaders.”

(with agency)

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