In Final Push, WhatsApp Urges SCOTUS to Reject NSO Group’s Certiorari Bid in ‘Pegasus’ Malware Case

After NSO Group took the opportunity to address the Solicitor General’s brief to the Supreme Court last week, WhatsApp followed suit. In its eight-page supplemental brief, the Meta Platforms-owned messaging platform argued that the government unequivocally recommended that the Court deny NSO Group’s request for review and that NSO cannot argue otherwise.

The case contends that WhatsApp and some users suffered attacks by NSO Group’s malware known as “Pegasus.” According to the company’s complaint, about 1,400 victims’ smartphones were targeted through WhatsApp, allowing intensive intrusion into their phones, as echoed by one suit filed by Salvadoran journalists who fell victim to the spyware.

The case has yet to reach merits briefing or a merits decision as NSO Group elected to plead a sovereign immunity defense, contending its work for foreign governments confers it common law immunity.

After losing twice, NSO Group petitioned the Supreme Court to take up the case concerning the scope of the Foreign Sovereign Immunities Act (FSIA) and specifically, whether it categorically precludes foreign entities’ claims of common-law immunity.

At the Court’s request, the Solicitor General commented that though it could not endorse the full scope of the presently-standing Ninth Circuit’s decision, it said that the court ultimately reached the correct conclusion.

NSO responded last week, arguing that the foregoing is still an important question of law that the Supreme Court should address, even if it loses the argument.

In response, WhatsApp set forth its view that NSO Group made several mischaracterizations in its brief. The filing also noted that NSO Group called for the Court to invite the views of the Solicitor General, who ultimately expressed that “NSO is not entitled to immunity, and this case is not worthy of this Court’s review.” Yet, NSO still seeks to quibble further, the brief ventured.

WhatsApp added that NSO’s response overstates the government’s position, clarifying that while the Solicitor General said it could not embrace the entirety of the decision-at-issue, it did not wholly reject it either. In addition, WhatsApp contended that NSO downplays the fact that the government definitively rejected one of NSO’s principal arguments in favor of certiorari.

Lastly, “the government’s definitive conclusion that NSO is not entitled to common-law immunity renders the petition’s vehicle problems—already substantial—insurmountable,” WhatsApp asserted. With no possibility that, in light of the government’s brief, NSO could succeed in its claim of immunity, WhatsApp pressed the court to decline the petition and await a case where the answer to that question could plausibly make a difference. 

The case was distributed for conference on Jan. 6, 2023.

WhatsApp is represented by O’Melveny Myers LLP and NSO Group by King & Spalding LLP.