Spyware Developer Wants Supreme Court To Block Facebook's Lawsuit

Israeli company NSO Group is asking the Supreme Court to review a ruling that allows Facebook to proceed with claims that NSO unlawfully installed the "Pegasus" malware on WhatsApp users' phones.

NSO argues that Facebook's lawsuit should be dismissed on the grounds that the Foreign Sovereign Immunity Act generally immunizes foreign governments from civil cases, except for some lawsuits related to terrorism.

"This dispute has significant implications for the United States’ foreign relations," the company says in its petition filed Wednesday with the Supreme Court.

"Numerous countries, including the United States, frequently rely on private contractors to perform or assist with core governmental activities," the outfit adds. “If such contractors can never seek immunity in U.S. courts, then the floodgates will open to foreign suits against U.S. contractors designed to interfere with the United States’ most sensitive intelligence and military operations.”

A trial judge and the 9th Circuit Court of Appeals previously ruled against NSO Group.

Last November, a three-judge panel of the 9th Circuit said the Foreign Sovereign Immunity Act protects "foreign states," but not private companies that license technology to the government.

"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," 9th Circuit Judge Danielle Forrest wrote in an opinion joined by Judges Mary Murguia and Ryan Nelson. "Thus, NSO is not entitled to the protection of foreign sovereign immunity."

NSO Group counters in its petition to the Supreme Court that other judges have "recognized that private agents of a foreign state enjoy conduct-based immunity when acting in their capacity as foreign agents."

The legal battle stemmed from reports that NSO installed Pegasus malware on the phones of approximately 1,400 WhatsApp users, including human rights leaders, journalists, government officials, and diplomats.

Facebook sued NSO in October of 2019, claiming that the company violated federal and California anti-hacking laws, and violated WhatsApp's terms of service.

Late last year, Apple also sued NSO over Pegasus. That matter has been put on hold, pending a decision about whether the Supreme Court will intervene in the suit brought by Facebook.

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