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Israeli company sued on spyware pushes high court for immunity

An intrigue born from software used to spy on journalists and activists asks the justices if companies are immune from suits for work they do on behalf of foreign nations.

WASHINGTON (CN) — Running out of options in a lawsuit from WhatsApp, the Israeli company behind the Pegasus cybersurveillance tool has petitioned the U.S. Supreme Court to step in. 

Pegasus software makes its way onto a target device through an innocuous text message, ultimately giving the entity that sent the message control over the recipient phone’s microphones and cameras, as well as unmasking the recipient's personal and location data. NSO Group Technologies markets the product as a law enforcement tool, but it faces a lawsuit on behalf of 1,400 lawyers, human rights activists, journalists and diplomats who have seen their privacy compromised through Pegasus intrusions via Whatsapp, the popular encrypted messaging service owned by the former Facebook parent company now known as Meta Platforms.

While NSO claims it is immune from Whatsapp's 2019 suit by because it was acting as an agent of foreign governments, a federal judge pushed the case forward and the Ninth Circuit affirmed late last year.

NSO petitioned the Supreme Court last week to reverse, saying the Foreign Sovereign Immunities Act does not displace common-law immunity for private companies working as agents for foreign governments that don’t seek common-law immunity in U.S. courts. 

Stressing the case's implications for U.S.-foreign relations, NSO says the Ninth Circuit gave a “drastic, categorical answer” to a question that other courts are divided on.

“If such contractors can never seek immunity in U.S. courts, then the floodgates will open to foreign suits against U.S. contractors designed to interfere with the United States’ most sensitive intelligence and military operations,” Jeffrey Bucholtz, an attorney for NSO with King & Spalding representing NSO, wrote in the filing dated April 6. “In light of those consequences, the question whether entities can seek common-law immunity should not have different answers in different circuits.” 

NSO has been battered with suits regarding its programs in recent years. Amnesty International sought to stop the company from selling its technology to repressive regimes, and a Saudi dissident claims the company’s technology was used to target him and Saudi journalist Jamal Khashoggi. 

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