Judges throw out spyware maker’s bid to derail legal case filed by WhatsApp

The US Supreme Court has rejected an Israeli spyware maker’s bid to derail a high-profile legal case filed by the WhatsApp messaging service.

The justices left in place lower court rulings against the Israeli firm, NSO Group.

WhatsApp claims NSO targeted 1,400 users of the encrypted messaging service with highly sophisticated spyware.

WhatsApp’s parent Facebook, now called Meta, is trying to block NSO from Facebook platforms and servers and recover unspecified damages.

NSO said it should be recognised as a foreign government agent and therefore entitled to immunity under US law limiting legal claims against foreign countries.

The request appeals a pair of earlier federal court rulings which rejected similar arguments by the Israeli company.

US President Joe Biden’s administration recommended the court turn away the appeal.

The Justice Department said “NSO plainly is not entitled to immunity here”.

NSO’s flagship product, Pegasus, allows operators to covertly infiltrate a target’s mobile phone, gaining access to messages and contacts, the camera and microphone and location history.

Only government law enforcement agencies can buy the product and all sales are approved by Israel’s defence ministry, NSO said.

It does not identify its clients.

WhatsApp says at least 100 of the users connected to its legal case were journalists, rights activists and civil society members.

Critics have said NSO’s clients include Saudi Arabia, the United Arab Emirates, Jordan and Poland and that those countries have abused the system to snoop on critics and stifle dissent.

NSO said it has safeguards in place to prevent abuses, although the firm also said it has no control over how its clients use the product.

The WhatsApp case is among a series of legal battles plaguing NSO.

In a separate case, Apple says it aims to prevent NSO from breaking into products.

It claimed Pegasus has affected a small number of iPhone users worldwide, calling NSO’s employees “amoral 21st century mercenaries”.

In November, journalists from an investigative news outlet in El Salvador also sued NSO in a US court after Pegasus spyware was detected on their iPhones.

“NSO’s spyware has enabled cyber-attacks targeting human rights activists, journalists and government officials. We firmly believe that their operations violate US law and they must be held to account for their unlawful operations,” WhatsApp spokesman Carl Woog said in a statement.

A lawyer for the journalists who sued also praised the court’s action.

“Today’s decision clears the path for lawsuits brought by the tech companies, as well as for suits brought by journalists and human rights advocates who have been victims of spyware attacks,” Carrie DeCell, senior staff lawyer at the Knight First Amendment Institute at Columbia University, said in a statement.

In its own statement, NSO said: “We are confident that the court will determine that the use of Pegasus by its customers was legal.”

NSO has also been blacklisted by the US Commerce Department, limiting its access to US technology.

US officials said the company’s products were complicit in “transnational repression”.