U.S. Court Denies NSO Group “Foreign Sovereign Immunity”

Published: 11 November 2021

spywareUS court greenlights WhatsApp lawsuit against NSO over Pegasus infections (Photo: Blogtrepreneur, Flickr, License)

By Henry Pope

In a development of NSO Group’s ongoing legal woes, a U.S. appeals court denied on Monday their motion to dismiss a lawsuit brought on against them by WhatsApp for allegedly using its servers to infect 1,400 of its users’ mobile devices with the infamous Pegasus spyware.

NSO, the Israeli surveillance firm that developed the controversial software, was denied “foreign sovereign immunity” in the face of WhatsApp’s accusations that they sent the spyware to users’ mobile devices in 2019, in an attack which reportedly targeted journalists, lawyers, and activists, according to court documents.

WhatsApp is a communications service used by approximately 1.5 billion people across 180 countries. All communications are encrypted so that only the sender and intended recipient can read them.

Court documents, however, show that WhatsApp has accused NSO of using spyware “designed to intercept and extract information and communications from mobile phones and devices” in order to access users’ private information, calls, messages, and locations.

WhatsApp also argues in its complaint that NSO spyware attacked vulnerabilities in its operating systems to “remotely and covertly extract valuable intelligence” from user devices and that the group profited in doing so.

Despite the surveillance firm’s attempts to classify itself as a “foreign agent”, whose spyware was used by foreign governments to combat crime rather than perpetuate it, the U.S. 9th Circuit Court of Appeals denied its motion to claim foreign sovereign immunity.

A WhatsApp spokesperson praised the court’s decision as “an important step in holding NSO accountable for its attacks against journalists, human rights defenders, and government leaders, ”The Guardian reported.

The Israeli surveillance firm has stated in the past how selective it is in choosing its clientele, claiming that it leases its spyware technology to those who “assist in combatting terrorism, serious crimes, and threats to national security.”

However, stories have rippled out how authoritarian figures have used NSO spyware technology to arrest and persecute journalists, activists, and anyone deemed a threat to their hold on power.

The fallout from international investigations and reporting on NSO’s actions have revealed how they enabled authoritarian governments to undermine democratic ideals such as the right to privacy and freedom of the press around the world. 

Earlier this year in July, WhatsApp head Will Cathcart urged companies and governments to “hold NSO Group accountable” for how they enabled authoritarian governments to “commit horrible human rights abuses all around the world.”

With the court’s decision to dismiss NSO’s foreign sovereign immunity claim, a case will now be laid against them to determine if the surveillance firm should be held responsible for its actions.

This is the second blow to NSO’s reputation this month alone. On Nov. 3, U.S. authorities blacklisted the surveillance firm for actions deemed to have threatened their national security and enabled foreign governments to conduct transnational repression.