US Court Of Appeals, Rules Facebook Can Sue NSO Alleged Exploitation Of WhatsApp Servers

Facebook wins lawsuit against Israel's NSO Group. (photo: doc. unsplash)

JAKARTA - A US appeals court said Facebook could file a lawsuit against Israel's NSO Group on charges of exploiting a bug in its WhatsApp messaging app by installing malware that allows surveillance of 1,400 people, including journalists, human rights activists and dissidents.

In a jury unanimous decision, 3-0, on Monday, November 8, the 9th US Circuit Court of Appeals in San Francisco dismissed NSO's claim, a privately owned company, that it was immune from prosecution for acting as an agent of a foreign government.

Facebook, now known as Meta Platform Inc, sued NSO over the allegations and sought damages in October 2019. They accused NSO of accessing WhatsApp servers without permission six months in advance to install the Pegasus malware on victims' mobile devices.

NSO argues that Pegasus helps law enforcement and intelligence agencies fight crime and protect national security. But they also ignore and even invade the privacy of many people in the world.

NSO briefly appealed the July 2020 court judge's refusal to grant him "behavioral-based immunity," a common law doctrine that protects foreign officials acting in their official capacity.

Upholding the ruling, Circuit Judge Danielle Forrest said it was an "easy case" because the Pegasus license and NSO's offer of technical support alone could not protect it from liability under federal law, which takes precedence over common law.

"Whatever NSO's government customers do with its technology and services does not make NSO an 'institution or tool of a foreign state'," Forrest wrote, as quoted by Reuters. "As such, NSO is not entitled to the protection of foreign sovereign immunity."

The case will eventually be returned to US District Judge Phyllis Hamilton in Oakland, California.

Asked to comment on the decision, NSO said in an email that its technology helps defend society against serious crime and terrorism, and that it is "uninfluenced in its mission."

WhatsApp spokesman Joshua Breckman in an email called the decision "an important step in holding NSO accountable for its attacks on journalists, human rights defenders and government leaders."

The Facebook case also has support from Microsoft Corp, Alphabet's Google Inc and Cisco Systems Corp, which in court filings called surveillance technologies like Pegasus "robust, and dangerous."

On November 3, the US government blacklisted NSO and Candiru Israel for allegedly providing governments with spyware that uses it to "maliciously target" journalists, activists and others.