Spyware Company Presses Supreme Court To Intervene In Privacy Battle With Facebook

The Israeli company NSO Group on Monday pressed the Supreme Court to review a “dangerously wrong” decision allowing Facebook to proceed with claims over Pegasus malware, which was allegedly installed on WhatsApp users' phones.

NSO Group argues it should not have to face claims that it installed spyware, because the Foreign Sovereign Immunity Act generally immunizes foreign governments from civil lawsuits.

A trial judge and the 9th Circuit Court of Appeals rejected that argument and refused to dismiss Facebook's lawsuit.

NSO Group, which recently urged the Supreme Court to take up the case, argues in its most recent filing that the 9th Circuit's decision could result in lawsuits against U.S. contractors in other countries.

The company writes that if courts in other countries follow the 9th Circuit's reasoning, “U.S. companies that supply technology, armaments, and other essential supplies to the United States will be equally exposed to litigation around the world.”

NSO Group adds: “There is no reason to doubt that the United States’ adversaries will take advantage of that opening to obstruct the United States’ intelligence and military operations.”

The battle between Facebook and NSO stemmed from reports that the Israeli company 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.

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."

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 case brought by Facebook.

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