Solicitor General Urges Rejection of NSO’s Cert. Petition in WhatsApp Malware Case

The United States Solicitor General filed a brief in response to an invitation from the Supreme Court on Monday, arguing that the high court should deny NSO Group Technologies Ltd.’s (NSO) certiorari petition in WhatsApp’s case against it over the hacking of user devices. The petition centers on NSO’s sovereign immunity defense, which both the district court and the appellate court rejected.

As the amicus brief recounts, NSO is an Israeli company “that produces surveillance technology, which it licenses to governments and government agencies” while WhatsApp provides a messaging platform that allows users to send encrypted communications.

WhatsApp went after NSO in 2019 alleging that the latter used a spyware program called Pegasus to bypass encryption, install malicious code, and access information on targeted devices. The civil complaint asserted violations of federal and state law and sought injunctive relief and damages.

NSO tried to deflect the suit by asserting sovereign immunity, specifically that it is protected by a common-law immunity comparable to the immunity for foreign officials because of its work for foreign governments. NSO raised this defense despite the parties’ agreement that as a private foreign entity, NSO did not qualify as a foreign state and could not “directly avail” itself of sovereign immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA).

The Northern District of California was the first court to reject NSO’s sovereign immunity defense in 2020. Last November, the Ninth Circuit affirmed the ruling on alternate grounds after considering the extent of the FSIA.

The panel held that the FSIA categorically forbids immunity to any entity that falls outside the law’s broad definition of “foreign state.” In so finding, the Ninth Circuit pointed to the law’s text, purpose, and history to demonstrate that “Congress displaced common-law sovereign immunity doctrine as it relates to entities.”

In this week’s amicus brief, the Solicitor General wrote that the United States was not prepared “to endorse that categorical holding.” The brief said that the Ninth Circuit’s ruling is not necessary to resolve the case and that it would “foreclose the Executive Branch from recognizing the propriety of an immunity in a particular context in the future even if such a recognition were found to be warranted, including by developments in international law or practice in foreign courts.”

Regardless, the Solicitor General said the appellate court reached the correct result in the case, that “NSO plainly is not entitled to immunity.” The brief added that no foreign state has supported NSO’s claim to immunity, and further, that NSO has not even identified the states for which it claims to have acted as an agent.

“Nor does the court of appeals’ decision otherwise warrant review,” the Solicitor General concluded, noting that the decision does not conflict with any Supreme Court or appellate court decision.

WhatsApp is represented by O’Melveny Myers LLP and NSO by King & Spalding LLP.