Spyware maker NSO can’t claim immunity, Facebook lawyers insist – it’s time to face the music

Attorneys for Facebook and its WhatsApp subsidiary have challenged a plea from spyware maker NSO Group to dismiss the high-level hacking case the two are fighting out, arguing it has immunity from prosecution.

Facebook sued the Israel-based NSO Group and its affiliate Q Cyber Technologies last October in the US, alleging the firms “manufactured, distributed, and operated surveillance software, also known as ‘spyware,’ designed to intercept and extract information and communications from mobile phones and devices of WhatsApp users.”

Facebook claims that NSO Group used its Pegasus spyware to hack about 1,400 phones and devices of WhatsApp users, including those of attorneys, journalists, human rights activists, and government officials.

NSO Group is also facing FBI scrutiny following the hacking of Amazon CEO Jeff Bezos’s phone last year. A UN investigatory summary [PDF], released in January, contends that “Mr. Bezos was subjected to intrusive surveillance via hacking of his phone as a result of actions attributable to the WhatsApp account used by Crown Prince Mohammed bin Salman.”

The UN report suggests NSO Group’s Pegasus software may have been involved, a claim the Israeli company has denied.

After failing to show up in court to respond to Facebook’s lawsuit, NSO Group said the ad biz had failed to properly serve its complaint and accused the company of lying. It subsequently claimed Facebook tried to buy NSO technology to monitor the social network’s since discontinued Onavo VPN. And hoping to get the case dismissed, NSO Group has argued it is immune because it only sells to governments.

Facebook’s legal filing [PDF] opposing the dismissal of the case contends NSO Group’s claim that “Facebook sought to purchase Pegasus to monitor Onavo app users is inaccurate and an attempt to distract from Defendants’ own conduct and the issues in this case.”

It then goes on to rebut the spyware maker’s contention that it can’t be held to account for its actions because the firms supposedly worked with foreign governments.

The Foreign Sovereign Immunity Act, the court filing says, applies only to foreign states, not individuals or contractors, citing Supreme Court precedent on the matter. “Here, NSO is a for-profit commercial company – decidedly not a foreign state,” it says.

Facebook’s opposition motion allows that contractors working with the US government qualify for immunity. But US law doesn’t recognize such immunity for those working with foreign governments.

What’s more, the filing challenges the credibility of NSO’s claim that it works with foreign governments because its CEO failed to identify any such client or contract to the court.

Addressing the spyware firm’s effort to avoid a trial in California, Facebook’s legal team points to the spyware company’s agreement to WhatsApp’s terms of service, which specify California as the jurisdiction for disputes, and to the firm’s use of server infrastructure in California, specifically servers operated by Los Angeles-based QuadraNet.

If NSO Group is indeed operating server infrastructure in support of its spyware, that undermines its defense that its clients do the hacking, Facebook’s lawyer argue.

Facebook’s court filing also cites the NSO’s financing from a California equity firm to show jurisdiction and the fact that one of its board members resides in the US.

In a statement emailed to The Register, an NSO Group spokesperson said, “Our products are used to stop terrorism, curb violent crime, and save lives. NSO Group does not operate the Pegasus software for its clients, nor can it be used against US mobile phone numbers, or against a device within the geographic bounds of the United States.”

“Our past statements about our business, and the extent of our interaction with our government intelligence and law enforcement agency customers, are accurate. We have no further comment on this matter at this time, but please note that per the court schedule, we will be filing a brief in response to these latest filings by WhatsApp in the coming days.” ®

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