• by Wendy Davis  @wendyndavis, November 22, 2022

The Biden administration is urging the Supreme Court to reject Israeli company NSO Group's argument that it is protected from liability over the alleged installation of Pegasus spyware on WhatsApp users' phones.

“NSO plainly is not entitled to immunity here,” the Solicitor General's office writes in a brief filed Monday. 

The administration is asking the Supreme Court to refuse to hear NSO's appeal of a lower court order rejecting the company's claim that it's protected by the Foreign Sovereign Immunity Act, which generally immunizes foreign governments from lawsuits in the U.S.

The dispute dates to October of 2019, when Meta Platforms sued NSO for allegedly installing Pegasus spyware on the phones of approximately 1,400 WhatsApp users, including human rights leaders, journalists, government officials, and diplomats.

Meta claims in the lawsuit that NSO violated federal and California anti-hacking laws, as well as WhatsApp's terms of service.

NSO Group sought a fast dismissal, arguing that it can't be sued in the U.S. because any actions it took were done at the direction of foreign governments.

The 9th Circuit Court of Appeals rejected that argument last year, writing that the Foreign Sovereign Immunity Act protects countries, not private companies that license technology to governments.

NSO Group then asked the Supreme Court to hear an appeal. Among other arguments, NSO Group says the lower court's opinion could result in lawsuits abroad against U.S. contractors.

If courts in other countries follow the 9th Circuit's lead, “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 argued.

In June, the Supreme Court asked the U.S. Solicitor General to weigh in on the dispute.

The Biden administration suggests that the 9th Circuit opinion may have been worded too broadly, but says the outcome of the case was correct.

“The court of appeals held that the [Foreign Sovereign Immunity Act] entirely forecloses the adoption of any form of immunity ... for an entity that acted as an agent of a foreign state. The United States is not prepared at this time to endorse that categorical holding,” the Solicitor General wrote. “Nonetheless, the court of appeals reached the correct result in this case.”

The administration added that the State Department has never suggested that a private entity acting as an agent of a foreign country has immunity, and that no other countries have supported NSO’s claim to immunity.

"Indeed, NSO has not even identified the states for which it claims to have acted as an agent,” the Solicitor General writes. 

Facebook isn't the only company suing WhatsApp.

Last November, Apple also sued the company for allegedly violating a federal anti-hacking law by accessing the operating system on mobile phones to install Pegasus.