Pursuing Review of Sovereign Immunity Defense Decision, NSO Group Turns to SCOTUS

The latest filing in the case over NSO Group-developed malware filed by WhatsApp is a brief by NSO urging the Supreme Court to grant its petition for certiorari. The Israeli firm’s supplemental brief responded to arguments made by the Solicitor General, who two weeks ago argued that though the United States does not fully agree with the Ninth Circuit’s decision, the court reached the right conclusion denying NSO’s sovereign immunity defense.

The case dates to 2020, when WhatsApp sued NSO Group for using its service to send spyware known as “Pegasus” to unsuspecting users. WhatsApp said that NSO sells its cyber arms to governments who wish to spy on and target dissidents, journalists, and others.

NSO responded to the lawsuit by claiming sovereign immunity, a defense it said it was entitled to as a government agent not under the Foreign Sovereign Immunity Act (FSIA), but under common law.

The case reached the Supreme Court’s doorstep after NSO twice lost and twice appealed. In last week’s brief, NSO pointed out that the government agrees that the Ninth Circuit incorrectly decided an important question of law, namely whether the FSIA entirely displaces common-law immunity for entities.

The filing added that the government’s brief sidesteps the “important” question of what law governs NSO’s defense, one worthy of review “even if NSO’s defense ultimately fails.”

Lastly, NSO said that the Ninth Circuit’s holding conflicts with Supreme Court, D.C. and Fourth Circuit decisions. The brief countered the Solicitor General’s argument that the Ninth Circuit’s decision is consistent with precedent, saying that it “rests on an unjustifiably narrow interpretation of Samantar’s reasoning.”

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