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Supreme Court allows WhatsApp lawsuit over 'Pegasus' spyware to move forward

Israeli company NSO Group Technologies is seeking to evade a lawsuit from Meta accusing it of using WhatsApp servers to install spyware on 1,400 devices.
People wait outside the Supreme Court
People outside the Supreme Court last year.Stefani Reynolds / AFP via Getty Images file

WASHINGTON — The Supreme Court on Monday allowed Meta to pursue a lawsuit alleging that an Israeli company unlawfully accessed WhatsApp servers when installing spyware on users’ devices.

The justices turned away NSO Group Technologies' appeal arguing that it was immune from the lawsuit because it was acting on behalf of unidentified foreign governments. Meta owns the WhatsApp messaging platform as well as the social media sites Facebook and Instagram. The case will now move forward in the U.S. District Court for the Northern District of California.

The lawsuit, filed in October 2019, alleges that NSO violated various laws, including the federal Computer Fraud and Abuse Act, when it installed the “Pegasus” spyware. Meta claims that NSO unlawfully accessed WhatsApp servers earlier in 2019, enabling it to conduct surveillance of 1,400 people, including journalists and human rights activists.

NSO said in court filings that it works on behalf of foreign governments, which it did not identify, and that the Pegasus software is a tool used by law enforcement and intelligence agencies.

“Some WhatsApp users are violent criminals and terrorists who exploit the software’s encryption to avoid detection,” the company’s lawyers wrote.

In 2020, the trial judge rejected NSO’s request for a form of immunity that protects foreign officials acting in their official capacity. The San Francisco-based 9th U.S. Circuit Court of Appeals also ruled against NSO.

The Biden administration, asked by the court in June to weigh in on the case, said in a brief that there was no need for the justices to hear it. Solicitor General Elizabeth Prelogar wrote that, among other things, NSO does not meet the normal criteria for a state entity that can claim immunity. In fact, she noted, no foreign government has told the State Department that NSO was acting on its behalf.