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US: legal case against Israeli spyware given go-ahead by appeals court 

November 9, 2021 at 2:41 pm

This studio photographic illustration shows a smartphone with the website of Israel’s NSO Group which features ‘Pegasus’ spyware, on display in Paris on July 21, 2021 [JOEL SAGET/AFP via Getty Images]

A lawsuit against the notorious Israeli NSO Group has been given the go-ahead by a US appeals court. The spyware company had sought to block the legal proceedings by claiming that it had immunity because it had acted as a foreign government agent.

The decision is the latest twist in the two-year case filed by Facebook against the Israeli firm. Facebook’s case against the NSO Group claims that it helped government spies to break into the telephones of roughly 1,400 WhatsApp users across four continents. The targets of the hacking spree, it is alleged, included diplomats, political dissidents, journalists and senior government officials.

In a 3-0 decision yesterday, the US Court of Appeals for the Ninth Circuit in San Francisco rejected NSO’s claim to immunity, which is usually granted to foreign envoys and government agencies. The Israeli firm was appealing against 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 the ruling, Circuit Judge Danielle Forrest deemed the NSO Group to be a privately owned firm and not entitled to the immunity granted to foreign envoys. It was an “easy case” decision, Forrest is reported as saying by Reuters, because NSO’s mere licensing of the Pegasus spyware and offering technical support did not shield it from liability under federal law, which takes precedence over common law.

“Whatever NSO’s government customers do with its technology and services does not render NSO an ‘agency or instrumentality of a foreign state’,” wrote Forrest. “Thus, NSO is not entitled to the protection of foreign sovereign immunity.”

READ: Notorious Israel NSO spyware hacked mobile phones of Palestinian rights groups

The case is now expected to return to US District Judge Phyllis Hamilton in Oakland, California.

Facebook’s case drew support from Microsoft Corp (MSFT.O), Alphabet Inc’s (GOOGL.O) Google and Cisco Systems Corp (CSCO.O), which in a court filing called surveillance technology such as Pegasus “powerful, and dangerous”.

Over the two years since the legal case was filed by Facebook against the Israeli firm, the extent of NSO’s dubious activities has been exposed. In July, a major investigation found that as many as 50,000 phone numbers were said to have been selected for surveillance using the snooping technology.

NSO spyware was also used to target the phones of six Palestinian human rights groups that were controversially declared terrorist organisations by Israeli Defence Minister Benny Gantz last month. The company’s product is part of a much wider spying system that has been installed by the Israeli government in the occupied Palestinian territories that includes an all-encompassing facial recognition programme.

Earlier this month, the US put the NSO Group on a trade blacklist because of what was deemed to be its rogue activities.