The United States Supreme Court denied the NSO Group’s petition for a writ of certiorari on Monday, allowing a lawsuit filed against the Israeli company by Meta to proceed. Meta owns the WhatsApp platform and alleges NSO installed Pegasus spyware on users’ devices by unlawfully accessing WhatsApp servers.
Meta brought the lawsuit against NSO in October 2019, claiming that the company illegally conducted surveillance of 1,400 individuals.
NSO appealed to the high court on April 6, 2022, claiming immunity from the lawsuit because the company's actions were performed on behalf of unnamed foreign governments. According to an earlier supplemental brief, NSO called for input from the Solicitor General, predicting federal opposition to the company’s claims of immunity.
The initial petition filed in 2019 also claimed "the government has ‘concerns about decisions that could expose its agents to reciprocal lawsuits abroad — which is precisely what the decision below portends.’”
To NSO, the Solicitor General’s views were appropriate to gauge the government’s position on immunity.
The government’s opinion on the matter is “unequivocal — NSO is not entitled to immunity, and this case is not worthy of this Court’s review,” as the “government took no definitive position on the question whether the Foreign Sovereign Immunities Act categorically precludes foreign entities’ claims of common-law immunity,” according to the ruling.
However, the court noted that the answer to the question of immunity was irrelevant, as “NSO plainly is not entitled to immunity here.”
The ruling determined the State Department hasn’t filed a suggestion of immunity in the case, nor is there an established practice or any instance of the agency suggesting immunity for a private company acting on behalf of a foreign government.
No foreign government has asserted NSO’s claim of immunity, and the company has not even named the states for which it claims to have been acting as an agent.
The ruling shows that NSO “received the government’s resounding ‘no’, then moved to request the Court “disregard the government’s views and grant review.” However, the request “lacks merit.”
Namely, the government’s “submission definitively rejects one of NSO’s principal arguments in favor of certiorari,” centering around federal-contractor immunity. While NSO speculated that the government had reciprocity concerns, the ruling shows that “the government’s brief was, again, unequivocal in rejecting NSO’s assertion.”
“The ‘United States does not agree’ with NSO’s contention that ‘the court of appeals’ decision threatens the United States’ ability to rely on private contractors abroad,’” according to the decision.
“There is thus no possibility, in light of the government’s brief, that NSO could succeed in its claim of immunity. If the Court is ever to consider the question presented in the petition, it should await a case where the answer to that question could plausibly make a difference. Here, it could not,” the court concluded.
Meta’s case against NSO Group will now proceed in the U.S. District Court of Northern California.
