On Monday, Apple Inc. responded to a dismissal bid by defendants NSO Group Technologies Limited and Q Cyber Technologies Limited, arguing that the defendants have offered the court no legitimate basis for rejecting its case. Apple implores Judge James Donato to deny the motion, arguing that the defendants are “twenty-first century mercenaries who have created sophisticated cyber-surveillance machinery targeting Apple.”
Apple’s pursuit of NSO began after the Ninth Circuit rejected the Israeli company’s appeal against WhatsApp. In that case, WhatsApp accused NSO of using the messaging platform to convey malware in order to target and surveil individuals at its client’s bidding.
The Ninth Circuit rejected NSO’s sovereign immunity defense, finding that the private company was neither acting as a sovereign nor its agent. NSO’s petition for certiorari is currently pending before the Supreme Court.
Apple’s December 2021 lawsuit said that NSO abused Apple services and servers to perpetrate attacks, in violation of the company’s terms of service, the Computer Fraud and Abuse Act (CFAA), and California’s Business and Professions Code. NSO moved to dismiss, lobbing a handful of defenses. They accused Apple of failing to state claims for relief, jurisdiction issues, and again, sovereign immunity.
In this week’s opposition, Apple refutes those contentions. The filing says that the Ninth Circuit rejected NSO’s previous sovereign immunity argument for good reason. “Private companies engaged in computer fraud and abuse for profit have no claim to the immunity that U.S. law grants to foreign states for their sovereign acts,” Apple says.
The company further contends that NSO waived jurisdictional objects when it agreed to Apple’s terms of service, thereby agreeing to bring any disputes in the Northern District of California. Nevertheless, NSO’s forum non conveniens arguments fail because the public and private interest factors “overwhelmingly favor” the current jurisdiction, not Israel, Apple says.
The opposition also pushes back on arguments that Apple has not alleged that it suffered cognizable loss under the CFAA. Apple backs its claim with arguments that NSO’s interpretation of the law is implausible, unmoored from its complaint’s allegations, and foreclosed by Supreme Court precedent.
The parties are set to argue the motion on June 2 in San Francisco.
Apple is represented by Wilmer Cutler Pickering Hale and Dorr LLP and NSO by King & Spalding LLP.
