A US appeals court has said Facebook can pursue a lawsuit accusing Israel’s NSO Group of exploiting a bug in its WhatsApp messaging app to install malware allowing the surveillance of 1,400 people, including journalists, human rights activists and dissidents.
In a 3-0 decision on Monday, the Ninth US Circuit Court of Appeals in San Francisco rejected privately owned NSO’s claim that it was immune from being sued because it had acted as a foreign government agent.
Facebook, now known as Meta Platforms Inc, in October 2019 sued NSO for an injunction and damages, accusing it of accessing WhatsApp servers without permission six months earlier to install its Pegasus malware on victims’ mobile devices.
Pegasus turns phones into pocket spying devices, giving users total access to the target’s phone contents without them knowing.
NSO has said that Pegasus helps law enforcement and intelligence agencies fight crime and protect national security. It was appealing a trial judge’s refusal in July last year to award it “conduct-based immunity,” a common law doctrine protecting foreign officials acting in their official capacity.
Upholding that ruling, Circuit Judge Danielle Forrest said it was an “easy case,” because NSO’s mere licensing of Pegasus and offering technical support did not shield it from liability under federal law, which took 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,’” Forrest wrote. “Thus, NSO is not entitled to the protection of foreign sovereign immunity.”
In Mexico, prosecutors said that they had detained a man accused of spying on a journalist using the Pegasus software.
The suspect, identified as Juan Carlos “G,” is thought to be the first person arrested in Mexico for using the software.
He was detained in the central city of Queretaro on charges of illegally monitoring communications and transferred to a prison in Mexico City, the attorney general’s office said.
The suspect’s actions against the unnamed journalist were aimed at “limiting and undermining her freedom of expression,” it said in a statement.
In July, an international media investigation called the Pegasus Project revealed that 25 journalists in Mexico were among the targets of NSO clients.
One of them, Cecilio Pineda, was murdered in March 2017.
Meanwhile, an investigation by a European rights group published on Monday found that Pegasus was used to hack the phones of staff of Palestinian civil society groups targeted by Israel.
The revelations by Frontline Defenders — backed by Amnesty International and the University of Toronto’s Citizen Lab — mark the latest development in the widening controversy surrounding six prominent Palestinian groups designated as “terrorist” organizations by the Israel Ministry of Defense last month.
Israel says the designated Palestinian groups work in collaboration with the Popular Front for the Liberation of Palestine, a Marxist group labeled a terrorist organization by many Western states.
There has been widespread criticism of the terrorist designation slapped on the groups Addameer, Al-Haq, Bisan Center for Research and Development, Defense for Children International — Palestine, the Union of Agricultural Work Committees and the Union of Palestinian Women’s Committees.
The Frontline Defenders investigation found that six devices used by employees of the targeted groups “were hacked with NSO Group’s Pegasus spyware,” including US citizen Ubai al-Aboudi, head of the Bisan Center, and French national Salah Hammouri, a researcher at Adameer.
Amnesty International’s Security Lab and Citizen Lab upheld those findings.
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