US Asks High Court to Side With Meta in Israeli Spyware Case

The Supreme Court should side with Meta in its lawsuit seeking to block an Israeli spyware company from allegedly accessing the encrypted messages of WhatsApp users, DOJ said in a filing last week, asking the high court to deny review in 21-1338.

WhatsApp sued Israeli spyware company NSO in 2019, alleging the company used its spyware program Pegasus to install “malicious code” on WhatsApp user devices, allowing NSO customers to target their devices and information. NSO licenses its spyware to governments and government agencies. NSO is claiming foreign sovereign immunity under the Foreign Sovereign Immunities Act (FSIA). It also welcomed DOJ’s views in the case.

The 9th Circuit U.S. Court of Appeals rejected NSO’s argument for common-law immunity for actions it took as an agent of a foreign government. The U.S. in its brief noted the 9th Circuit’s conclusion that the FSIA’s “specification of the entities (including corporations) that have a sufficient nexus to a foreign state to be covered by the statute’s conferral of sovereign immunity categorically forecloses recognition of any common-law immunity for any other entities.”

The 9th Circuit correctly found that NSO is “plainly” not entitled to immunity here, said DOJ, despite whether “common-law immunity for an entity acting as the agent of a foreign state might be appropriate in some circumstances.” It noted the State Department hasn’t filed a suggestion of immunity in this case, and there is “no established practice,” or even a single prior instance, of the State Department “suggesting an immunity for a private entity acting as an agent of a foreign state.”

The 9th Circuit’s decision doesn’t warrant Supreme Court review for multiple reasons, said DOJ. First, it’s a “poor vehicle” for considering the questions raised by NSO, it said: The “prerequisites for recognition of a common-law conduct-based immunity are not present in this case, whether or not recognition of such an immunity for a private entity that allegedly acted as the agent of a foreign government could ever be consistent with the FSIA.” The court should only consider these questions if and when the U.S. has “supported a claim of immunity on behalf of an entity and articulated the principles on which it rests,” it said.

WhatsApp agreed in its filing that the case is an “unsuitable vehicle” for certiorari and said it’s a “poor candidate for inviting the government’s views.” WhatsApp noted that NSO doesn’t “purport to have requested immunity” from the State Department, and the State Department “has never suggested that NSO should be immune.” WhatsApp also dismissed NSO’s claim that certiorari is warranted because the 9th Circuit’s decision conflicts with decisions of two other appeals courts: “Neither the D.C. Circuit nor the Fourth Circuit held that private entities may obtain common-law foreign sovereign immunity.”

NSO transmitted malicious software over WhatsApp servers to infect the devices of some 1,400 WhatsApp users between April and May 2019, WhatsApp said. Victims included “attorneys, journalists, human-rights activists, political dissidents, diplomats, and other foreign government officials.” The company sued NSO based on claims under the Computer Fraud and Abuse Act, a federal cybersecurity law, and the California Comprehensive Computer Data Access and Fraud Act. NSO engaged in “intentional, deceptive, and unauthorized accessing of WhatsApp servers,” the company said.