WhatsApp Fights Petition for Rehearing in NSO Group Appeal

In a filing submitted on Monday, WhatsApp LLC and Meta Platforms Inc. (together, WhatsApp) opposed the request made by Israel’s privately owned NSO Group that the Ninth Circuit rehear its sovereign immunity appeal en banc.

Previously, an appellate panel said that NSO Group was not entitled to the defense and that it must face claims brought by WhatsApp over malware the defendant and Q Cyber Technologies allegedly sent via the messaging platform to nearly 1,400 mobile phones in order to spy on users.

The case began when WhatsApp sued the defendants over their alleged malicious activities, claiming that they violated the Computer Fraud and Abuse Act, the California Comprehensive Computer Data Access and Fraud Act and committed breach of contract and trespass to chattels. The defendants levied a sovereign immunity defense, which was first turned down by a San Francisco, California federal court then by the Ninth Circuit.

Specifically, the appellate panel considered whether NSO Group could receive immunity based on the fact that some of its clients are government entities. The panel declined this argument, finding that “Congress comprehensively addressed foreign sovereign immunity claims by entities in the Foreign Sovereign Immunity Act (FSIA) and limited such claims to foreign-state-owned entities, private entities cannot assert sovereign immunity under the FSIA, the common law, or anything else,” as this week’s filing explained.

WhatsApp argued that, contrary to NSO Group’s position, the opinion does not conflict with the decisions of two other courts of appeals and a Supreme Court decision, Samantar v. Yusef. “Neither appellate decision embraced a claim of common-law foreign sovereign immunity for private entities or suggested that such immunity could be available. And Samantar—like the judicial decisions before it and consistent Executive Branch practice—recognized common-law foreign sovereign immunity claims only for individuals,” the opposition said.

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