WhatsApp can sue Israeli firm NSO Group, US appeals court rules

A United States appeals court has ruled that the WhatsApp messaging service can move forward with a lawsuit against NSO Group, asserting that the immunity from civil litigation in US courts enjoyed by foreign governments does not extend to the private Israeli surveillance company.

WhatsApp is suing NSO Group over the alleged targeting of its servers in California with malware to gain unauthorised access to approximately 1,400 mobile devices in violation of US state and federal law.

The Israeli firm has sparked outrage from rights groups after a recent investigation by international media outlets revealed its Pegasus spyware was used by security forces and authoritarian governments in several countries.

On Monday, a three-judge panel on the San Francisco-based Ninth Circuit Court of Appeals affirmed a lower court’s decision to allow WhatsApp’s lawsuit to proceed, stressing that NSO Group does not qualify for sovereign immunity even if its clients are foreign government agencies.

“NSO claims that it should enjoy the immunity extended to sovereigns because it provides technology used for law-enforcement purposes and law enforcement is an inherently sovereign function,” Judge Danielle Forrest, who was appointed by ex-President Donald Trump, wrote in the ruling.

“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. Thus, NSO is not entitled to the protection of foreign sovereign immunity.”

Facebook Inc, which recently changed its name to Meta and owns WhatsApp, first sued NSO Group in 2019.

In the original legal complaint, WhatsApp accused the Israeli firm of breaching its terms of service and undermining the messaging platform’s “reputation, public trust and goodwill” with hacking activities.

The San Francisco court’s decision comes amid renewed scrutiny of NSO Group’s activities and less than a week after the Biden administration sanctioned the firm after accusing it of enabling “transnational repression” with its spyware.

The Israeli company has dismissed the criticism, stressing that its products are used to target criminals and “terrorists”. It also promised to fight the Biden administration’s move.

Earlier on Monday, the non-profit Frontline Defenders revealed that NSO’s Pegasus spyware was detected on the phones of six Palestinian human rights activists, three of whom are affiliated with civil society groups recently blacklisted by Israel as “terrorist organisations”.

Amnesty International and the University of Toronto’s Citizen Lab confirmed the findings in a joint technical report.

Meanwhile, a WhatsApp spokesperson welcomed the US court’s decision on Monday, calling it “an important step in holding NSO accountable for its attacks against journalists, human rights defenders and government leaders”.

For its part, NSO told the Reuters news agency that it “stands undeterred in its mission”, reiterating its stance that its products help with public safety.