SAN FRANCISCO (CN) — A federal judge dismissed a lawsuit Friday afternoon from a group of Salvadoran investigative journalists who claimed they were the targets of spyware attacks from an Israeli cyber intelligence group.
The journalists, from an investigative news outlet called El Faro, sued NSO Group, an Israeli cyber intelligence agency, in 2022 after they said they were victims of spyware attacks in 2020 and 2021.
The journalists say hackers used NSO Group’s “Pegasus” technology to hack into their iPhones. Pegasus, according to the journalists, allows hackers to take control of a user’s smartphone and get access to calls, texts, contacts and other sensitive or personal data. They called the attacks a “part of a coordinated and sustained effort to undermine independent journalism in El Salvador.”
NSO Group — blacklisted by the U.S. government in 2021 — says it says it sells its spyware only to legitimate government law enforcement and intelligence agencies vetted by Israel’s Defense Ministry for use against terrorists and criminals. They argued to dismiss under the doctrine of forum non conveniens, under which a court can decline jurisdiction if it believes another court is a more convenient or just venue for the case.
U.S. District Judge James Donato agreed with NSO Group’s argument, writing that the case filed in California federal court was “tailor made” for the forum non conveniens doctrine.
“The nub of this case is entirely foreign, and concerns the use of software produced in Israel to hack devices owned by a Salvadoran news service and used by journalists in El Salvador," Donato wrote. “Every incident described in the complaint involved Salvadoran journalists covering Salvadoran news stories while working primarily in El Salvador. There is little reason under the forum non conveniens factors to undertake the burden of litigating this foreign conduct here.”
Donato wrote that neither party disputed that Israel would be a sufficient alternative forum for the case.
In addition to jurisdictional factors, Donato had to consider whether there was any private or public interest that would justify hearing the case in California. The journalists had argued since it was iPhones that were hacked, and that Apple is a California company, there was a public interest in the case being heard in California.
Donato wrote that California's interest is protected in a separate lawsuit that Apple has filed against NSO, and that “a good argument can be made that California has no interest whatsoever in El Faro’s readership. Plaintiffs’ suggestion that the case should be litigated here because the United States has an interest in managing the use of spyware is a massive generalization of no utility for the forum non conveniens analysis.”
Donato added that it would be a burden for a local jury to sit in a long trial with entirely foreign parties.
“It belongs in a court in Israel or El Salvador, and not here. Fairness, convenience and judicial economy demand no less. To conclude otherwise would open the doors of the federal courts to lawsuits by foreign entities for conduct that occurred entirely outside the United States, a result that cannot be squared with our traditional understanding of due process and limited jurisdiction,” Donato wrote.
Hearing the case in California would also burden NSO Group, Donato added, because Israel is more than twice as far away from San Francisco as El Salvador is.
“This is particularly so because NSO will be the source of substantially more evidence and witnesses than plaintiffs,” Donato wrote.
Donato ordered the case to be closed, and wrote that the plaintiffs could not amend the complaint to overcome the forum non conveniens doctrine.
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