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Pegasus: Does NSO qualify for ‘immunity’, US Supreme Court asks Biden administration

As Meta sues Israel-based NSO, developer of the Pegasus spyware, the US Spreme Court seeks the Biden administration’s opinion on its foreign immunity

The United States Supreme Court wants the Biden administration to weigh in on whether Israel’s NSO Group has sovereign foreign immunity from civil litigation in the US to determine whether a lawsuit by WhatsApp against the spyware company can proceed, Reuters reported.

The justices are considering NSO’s appeal of a lower court’s decision allowing the lawsuit to move forward. In April 2022, NSO argued that it is immune from being sued because it was acting as an agent for unidentified foreign governments when it installed the “Pegasus” spyware.

WhatsApp – owned by Meta (formerly Facebook) – is suing the NSO Group over the alleged targeting of its servers in California with malware to gain unauthorized access to approximately 1,400 mobile devices in violation of US state and federal law. 

Why it matters: Last year, a media investigation revealed that political leaders, journalists, activists, businessmen, government officials and several others from several countries were targeted for surveillance by their respective states using Pegasus. While the US itself hasn’t been implicated in the use of Pegasus, software manufactured by American companies (and used worldwide) were breached by the spyware. As such, the US Supreme Court’s ruling in this case would have international implications on how Pegasus is recognized. 

A brief history of the WhatsApp-NSO suit: In its original complaint filed in 2019, WhatsApp had accused the Israeli firm of breaching its terms of service and undermining the messaging platform’s “reputation, public trust and goodwill” with hacking activities.

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NSO has argued that Pegasus helps law enforcement and intelligence agencies fight crime and protect national security. It appealed a trial judge’s July 2020 refusal to award it “conduct-based immunity,” a common-law doctrine protecting foreign officials acting in their official capacity.

Upholding that ruling in November 2021, a San Francisco circuit court called it an “easy case” because NSO’s licensing of Pegasus and offering technical support did not shield it from liability under the Foreign Sovereign Immunities Act, a federal law which takes precedence over common law.

What is Pegasus: NSO’s flagship product, Pegasus, allows operators to covertly infiltrate a target’s mobile phone, gaining access to messages, contacts, the camera, microphone, and location history.

It says that it sells the product only to government law enforcement agencies to catch criminals and terrorists and that all sales are approved by Israel’s defence ministry. It does not identify its clients.

In July 2021, a series of investigations by a international network of news groups under the coordination of French non-profit group Forbidden Stories showed how Pegasus was used by governments to spy on activists, journalists and political dissidents. Governments such as Bahrain, India, Morocco, Saudi Arabia and the United Arab Emirates have been accused of using the spyware.

Pegasus in India: The Forbidden Stories report and WhatsApp’s own admittance to the Ministry of Electronics and Information Technology revealed that Congress leader Rahul Gandhi, poll strategist Prashant Kishor, Union Minister Ashwini Vaishnaw, journalists, activists, bureaucrats, businessmen, and many others were being surveilled using Pegasus. Activists jailed in the Bhima-Koregaon case have argued that their phones had been illegally tapped using Pegasus. 

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The Supreme Court has formed a special committee to look into the matter. In February, the NIA allowed the Bhima-Koregaon accused to submit their phones to the committee for investigation. 

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