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WhatsApp Parent Meta allowed to sue NSO Group for installing Pegasus malware

The U.S. Supreme Court on Monday upheld Meta Platforms-owned WhatsApp’s lawsuit accusing the Israeli NSO Group of using a bug in the WhatsApp messaging app to install spyware that allows it to monitor 1,400 people, including journalists, human rights activists and dissidents.

The judges dismissed the NSO’s appeal of the lower court’s decision that the lawsuit could proceed. The NSO claimed it was immune from prosecution because it was acting as an agent for unknown foreign governments when it installed the Pegasus spyware.

The Joe Biden administration has called on judges to dismiss the NSO’s appeal, noting that the US State Department has never previously recognized an individual acting as an agent of a foreign country as eligible for immunity.

Meta, the parent company of WhatsApp and Facebook, welcomed the court’s decision to dismiss the NSO’s “baseless” appeal in a statement.

“NSO’s spyware has enabled cyberattacks targeting human rights activists, journalists and government officials,” Meta said. “We firmly believe that their operations violate US law and they should be held accountable for their illegal operations.”

An NSO lawyer did not immediately respond to a request for comment.

In 2019, WhatsApp sued the NSO seeking an injunction and damages, accusing it of accessing WhatsApp servers without permission six months earlier to install the Pegasus software on victims’ mobile devices.

The NSO claims that Pegasus helps law enforcement and intelligence agencies fight crime and protect national security, and its technology is designed to catch terrorists, pedophiles and hardened criminals.

In court documents, the NSO said the notification of WhatsApp users derailed a foreign government investigation into an Islamic State militant who used the app to plan the attack.

In one notorious case, NSO spyware was used – allegedly by the Saudi government – to attack the inner circle of Washington Post journalist Jamal Khashoggi shortly before he was killed in the Saudi Arabian consulate in Istanbul.

The NSO is appealing the trial judge’s 2020 refusal to award him “conduct-based immunity,” a common law doctrine that protects foreign officials acting in their official capacity.

Upholding the decision in 2021, the 9th U.S. Circuit Court of Appeals in San Francisco called it “a no-brainer” because simply licensing Pegasus NSO and offering technical support does not protect it from liability under a federal law called the Foreign Immunities Act. sovereigns. which took precedence over customary law.

WhatsApp lawyers said private entities like the NSO are “categorically ineligible” for foreign sovereign immunity.

The Biden administration, in a November statement, said the 9th Circuit had reached the correct result, although the government was not prepared to endorse the district court’s finding that the FSIA completely excludes any form of common law immunity.

According to court documents, the accounts of 1,400 WhatsApp users were accessed using tracking software Pegasus, which secretly used its smartphones as surveillance devices.

An investigation published in 2021 by 17 media organizations led by the Paris-based non-profit journalism group Forbidden Stories found that spyware was used in attempts and successful hacks into smartphones belonging to journalists, government officials and human rights activists. global scale.

In November 2021, the US government blacklisted the NSO and Israel’s Candiru, accusing them of providing spyware to governments that used it to “maliciously attack” journalists, activists and others.

The NSO is also suing iPhone maker Apple, accused of violating its user terms and services agreement.

© Thomson Reuters 2023

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