• by Wendy Davis  @wendyndavis, April 19, 2022

Apple is urging a federal judge to allow it to proceed with a lawsuit against Israeli outfits NSO Group for allegedly installing spyware on iPhones.

NSO Group and the related company Q Cyber “are twenty-first century mercenaries who have created sophisticated cyber-surveillance machinery targeting Apple,” the iPhone developer says in papers filed Monday with U.S. District Court Judge James Donato in the Northern District of California.

“Apple has rights under U.S. law, California law, and binding terms of service to redress in this court for its injuries,” the company adds in a legal memo urging Donato to reject NSO Group's request to dismiss the lawsuit at an early stage.

NSO Group allegedly installed Pegasus spyware on mobile phones in order to spy on journalists, government officials, advocates and other people in more than 50 countries.

Apple sued NSO Group over the alleged spyware installations last year, claiming the company violated the Computer Fraud and Abuse Act -- an anti-hacking law dating to 1986 -- by accessing the operating system on Apple devices without authorization and installing “highly invasive software.”

NSO Group recently urged Donato to dismiss the matter at an early stage. Among other arguments, NSO Group said it's protected from lawsuits by the Foreign Sovereign Immunity Act because the company's clients are foreign governments. That law generally immunizes foreign governments from civil actions in the U.S., except for some lawsuits related to terrorism.

A federal appellate court rejected that identical argument in a lawsuit brought against NSO Group by Facebook. The Israeli company recently urged the Supreme Court to take up the case; that request is pending.

NSO Group also argued to Donato that even if Apple's allegations were proven true, they wouldn't show a violation of the Computer Fraud and Abuse Act. That law prohibits anyone from accessing another company's computers without authorization.

NSO contends that Apple's allegations, if true, would only prove that consumers' devices operating systems -- as opposed to Apple computers -- were accessed without authorization.

“Taking Apple’s allegations of NSO’s conduct as true, NSO did not allegedly 'access' any 'protected computer' to which Apple has any rights,” NSO wrote.

The spyware company additionally asserted that Apple couldn't show any financial loss from NSO's alleged activity.

“Assuming the truth of Apple’s allegations, NSO’s alleged access to individual users’ devices would have injured only those individuals,” NSO wrote.

Apple is asking Donato to reject those contentions for numerous reasons, including that it had to deploy resources investigating reports of spyware and upgrading security.

"Defendants installed spyware on users’ devices without authorization, and Apple’s losses flowed from defendants having done so," Apple writes.

Donato is expected to hold a hearing in the matter on June 2.