US Supreme Court Allows Whatsapp Lawsuit Against NSO Group over Hacking Allegations

The US Supreme Court has allowed Whatsapp's lawsuit against the NSO Group. (PHOTO: DOK. PIXABAY)

JAKARTA - The US Supreme Court on Monday 9 January gave the green light to Meta Platforms Inc subsidiary WhatsApp to file a lawsuit accusing Israel's NSO Group of exploiting a bug in the messaging app WhatsApp to install spy software that allowed surveillance of 1.400 people, including journalists, human rights activist and dissident.

The judges rejected NSO's appeal of a lower court's decision that the lawsuit could proceed. NSO argued that it was immune from prosecution for acting as an agent of an unidentified foreign government when installing the "Pegasus" spyware.

President Joe Biden's administration has urged judges to reject NSO's appeal, noting that the US State Department has never recognized a private entity acting as an agent of a foreign state to be entitled to immunity.

Meta, the parent company of WhatsApp and Facebook, in a statement welcomed the court's move to reject NSO's "unfounded" appeal.

"NSO spyware has activated cyberattacks targeting human rights activists, journalists and government officials," Meta said, as quoted by Reuters. "We strongly believe that their operations violated US law and they should be held accountable for their unlawful operations."

NSO's lawyers did not immediately respond to a request for comment from Reuters on the report.

WhatsApp in 2019 sued NSO seeking injunction and damages, alleging it accessed WhatsApp servers without six months prior permission to install Pegasus software on victims' mobile devices.

NSO believes that Pegasus helps law enforcement and intelligence agencies fight crime and protect national security and that its technology is intended to assist in catching terrorists, pedophiles and hardened criminals.

In court documents, NSO said WhatsApp's notification of users voided a foreign government's investigation into ISIS militants using the app to plan attacks.

In one high-profile case, NSO spyware was allegedly used by the Saudi government to target Washington Post journalist Jamal Khashoggi's inner circle shortly before he was murdered in the Saudi consulate in Istanbul.

NSO is appealing against a 2020 court judge's refusal to grant it "conduct-based immunity", a common law doctrine that protects foreign officials acting in their official capacity.

Upholding that ruling in 2021, the San Francisco-based 9th US Circuit Court of Appeals called it an "easy case" because NSO only licensed Pegasus and offered technical support, not protecting it from liability under a federal law called the Act. Foreign Sovereign Immunities Act, which takes precedence over customary law.

WhatsApp's lawyers say private entities like NSO are "categorically ineligible" for foreign sovereign immunity.

The Biden administration in a lawsuit last November said the 9th Circuit achieved the right results, even though the administration was not ready to support the circuit court's conclusion that the FSIA fully forfeited any form of immunity under common law.

According to court documents, the accounts of 1.400 WhatsApp users were accessed using tracking software Pegasus, which surreptitiously used their smartphones as surveillance devices.

An investigation published in 2021 by 17 media organizations, led by the Paris-based non-profit journalism group Forbidden Stories, found that the spyware had been used in attempting to successfully hack the smartphones of journalists, government officials and human rights activists in a global scale.

The US government in November 2021 blacklisted Israel's NSO and Candiru, and accused them of providing the government with spyware that uses it to "maliciously target" journalists, activists and others.

NSO was also sued by iPhone maker Apple Inc and accused of violating its terms and user service agreements.