SCOTUS Denies NSO Group’s Cert. Petition, Ending Sovereign Immunity Appeal in WhatsApp’s Hacking Case

The Supreme Court has declined to review a Ninth Circuit Court of Appeals ruling in favor of WhatsApp in a hacking case it brought against Israel-based NSO Group over malware sent via the messaging platform to surveillance targets. Monday’s docket entry summarily denying the petition means that the case will return to the Northern District of California which has scheduled a status conference for the middle of February.

As previously reported, WhatsApp sued NSO for using its messaging platform to deliver malware known as Pegasus to about 1,400 users. WhatsApp’s filings have called NSO a “modern mercenary,” available for hire to governments willing to pay for sophisticated cyber surveillance and hacking tools.

The case leveled a number of claims at NSO, including violations of the Computer Fraud and Abuse Act, the California Comprehensive Computer Data Access and Fraud Act, and for breach of contract and trespass to chattels.

The subject of the petition to the Supreme Court was whether NSO was entitled to a sovereign immunity defense as the claimed agent of a foreign government. The district and appellate courts answered that question in the negative, each on slightly differing grounds.

Before the Supreme Court, the Solicitor General, at the Court’s invitation, said that while the United States did not fully agree with Ninth Circuit’s holding, the appellate court reached the right result.

With the Supreme Court passing on the petition, the case will now be returned to the Northern District of California where Judge Phyllis J. Hamilton will continue presiding.

WhatsApp is joined by Apple and most recently a group of Salvadoran journalists in its pursuit of NSO over the illicit spyware. The two cases were related late last week and will now proceed in view of the certiorari decision in WhatsApp’s case.

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