People’s privacy must be protected in court. Yesterday, Access Now alongside ten other civil society organizations filed an amicus brief in the U.S.’ Ninth Circuit Court of Appeals calling to protect encryption from NSO Group’s Pegasus spyware and to keep the lower court’s permanent injunction forbidding NSO from ever targeting WhatsApp or its customers’ devices ever again.
In the lawsuit, originally filed in the Northern California District Court in October 2019, WhatsApp and its parent company Facebook (now Meta) sued NSO for using WhatsApp’s servers to deliver Pegasus spyware to the devices of over 1,400 people across 20 countries. Access Now and partners filed an amicus brief in 2020 when the case was originally appealed on jurisdictional grounds, bringing the perspectives of the civil society victims of Pegasus to the court.
After six years of legal battle, including NSO’s unsuccessful appeal to the U.S. Supreme Court, the District Court issued a historic ruling in favor of WhatsApp and a permanent injunction stopping NSO from targeting WhatsApp messenger and its users.
In the latest amicus brief, the coalitions’ second in the case, Access Now and fellow amici argue that by safeguarding encryption, the Ninth Circuit Court would — and should — protect the security and work of journalists, activists, and human rights defenders in the U.S. and around the world; U.S. national security; and the security of global digital infrastructure that billions of people rely on.
The District Court was correct in ruling that NSO should be stopped from unlawful targeting of WhatsApp users with Pegasus spyware bypassing the protection offered by encrypted messaging. Pegasus not only causes irreparable harm to WhatsApp’s business interests but, moreover, undermines the privacy and security of billions of people using WhatsApp, including journalists, dissidents, and human rights defenders all over the world. The Circuit Court should uphold the injunction.Natalia Krapiva, Senior Tech Legal Counsel at Access Now
NSO’s appeal comes amidst its efforts to whitewash its reputation as the most infamous spyware company in the world whose product is used to surveil and harass those who speak out against dictators, corruption, and criminal organizations. The spyware firm also attempted to hijack the Pall Mall Process by misleadingly claiming they were participating in the major multilateral effort to limit commercial hacking. The main goal of NSO Group remains its removal from the U.S. Commerce Department Entity List, which restricts doing business with NSO for its activities contrary to the national security or foreign policy interests of the U.S. government.
NSO’s Pegasus spyware is a direct threat to all Americans and the integrity of the digital infrastructure of Americans and people around the world rely on to receive information and communicate. Companies like NSO weaken the security of encrypted communications while enabling authoritarian abuses and transnational repression that run counter to U.S. interests and democratic values.Michael De Dora, U.S. Policy and Advocacy Manager at Access Now.
In the brief, Access Now and fellow amici argue that without the permanent injunction, NSO will continue enabling human rights violations. There are clear signs that NSO is enabling surveillance as usual, despite the lawsuit in the U.S. and around the world and U.S. government Entity Listing. Despite NSO’s claims that it benefits U.S. national security, our brief argues that even under U.S. ownership Pegasus will be used to perpetuate human rights abuses against U.S. foreign policy interests.
Access Now urges the Ninth Circuit Court to rule in favor of WhatsApp and affirm the District Court’s partial summary judgment and permanent injunction and the jury verdict against NSO.
The amici thank King Xia, Jacob Wall, and Andreas Kaltsounis from BakerHostetler for their pro bono legal assistance in this case.