The Supreme Court has asked the Biden administration to weigh in on if the court should hear a case involving WhatsApp and Israel’s NSO Group.
The court asked the Justice Department to give an overview of what it thinks about the case on Monday.
In October 2019, WhatsApp sued NSO group for allegedly accessing their servers six months earlier without permission. They then allegedly installed their Pegasus spyware on over 1,400 users’ phones, including journalists, human rights activists and dissidents.
NSO Group argues that it is immune to lawsuits because it was acting as an agent for unidentified foreign governments. They said their actions should fall under “conduct-based immunity,” a common-law doctrine that protects foreign officials acting in their official capacity.
The 9th Circuit Court of Appeals denied their claim, calling it an “easy case” because NSO licensing and offering technical support for Pegasus violates a federal law called the “Foreign Sovereign Immunities Act,” which the court says takes precedence over the common law.
Pegasus software can be installed covertly on mobile phones, including most versions of iOS and Android. It was the first piece of spyware known to use jailbreaking to install itself without physical access to the device. Jailbreaking is a process that unlocks the software on phones and other electronic devices. It was discovered in August 2016 after human rights activist Ahmed Mansoor received a text message promising leaks about torture happening in the United Arab Emirates. Instead of clicking the link, he sent it to Citizen Lab of the University of Toronto, who discovered the spyware and its links to NSO Group.
The spyware is capable of reading all communications from the phone, as well as wifi passwords and other sensitive information. It has been used by the governments of dozens of countries, including Uganda, which used it to spy on diplomats and employees of the US embassy in Uganda last year.
It was also used in Spain to spy on Spanish government officials, leading to an investigation. On Tuesday, the high court of Spain asked the CEO of NSO Group to testify for the investigation. NSO Group has not indicated if they will respond to the request.
NSO Group claims that the Pegasus software is used by governments to catch criminals and protect national security.
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