The nation’s high court has requested the input of the U.S. Solicitor General in a dispute initiated by WhatsApp against NSO Group and affiliate Q Cyber Technologies (together, NSO) over spyware the defendants allegedly sent through WhatsApp’s messaging platform to surveil select individuals. The question at hand is whether petitioner NSO is entitled to sovereign immunity.
The computer fraud lawsuit alleges that NSO sent malicious software through WhatsApp to around 1,400 mobile phones angling to spy on users. Since the beginning of the case, NSO has opposed on sovereign immunity grounds, arguing that it, as an agent of the Israeli government, should be afforded common-law immunity in the foreign forum.
The district court declined the defense and in November 2021, a unanimous Ninth Circuit panel affirmed, ruling on what it said was an issue of first impression for the Ninth Circuit and the Supreme Court. The decision specified that the Foreign Sovereign Immunities Act’s (FSIA) definition of “foreign state” was comprehensive and excluded private entities like NSO. Thereby, the court rejected NSO’s invocation of the common-law liability shield.
NSO then requested a rehearing en banc, which the Ninth Circuit declined. In its petition for a writ of certiorari, the company argued that the appellate decision conflicts with decisions from other circuits. “Until the Ninth Circuit’s decision, no court had held that the FSIA forbids a private entity from seeking common-law conduct-based immunity,” its petition said.
The court’s single-sentence invitation requesting the solicitor general’s view comes after full briefing on NSO’s petition and after NSO suggested the court consult the solicitor general in its papers. NSO reasoned that “[g]iven the importance of the question presented to the United States’ reliance on contractors, Respondents cannot persuasively argue that calling for the views of the Solicitor General is unwarranted merely because the government did not file a brief below.”
WhatsApp and Facebook are represented by O’Melveny Myers LLP. NSO Group and Q Cyber Technologies are represented by King & Spalding LLP.
