Access Now tells the 9th Circuit Court: NSO Group cannot escape accountability in U.S. courts

Today, December 23, Access Now, along with Amnesty International, Committee to Protect Journalists, Internet Freedom Foundation, Paradigm Initiative, Privacy International, Reporters Without Borders, and Red en Defensa de los Derechos Digitales (R3D) are calling upon the U.S. Federal 9th Circuit Court to hold notorious cybersurveillance company, NSO Group, whose Pegasus spyware has been used to target civil society around the world, accountable.

In the lawsuit, originally filed in the Northern California District Court in October 2019, WhatsApp and its parent company Facebook are suing NSO for using WhatsApp’s servers to deliver Pegasus spyware to the devices of 1,400 users in violation of U.S. Computer Fraud and Abuse Act (CFAA), California Comprehensive Data Access and Fraud Act, as well as contract and trespass law. Research by The Citizen Lab revealed that more than 100 of these attacks targeted members of civil society, including human rights activists, journalists, dissidents, lawyers, and even religious leaders.

“NSO’s WhatsApp hacking has enormous human costs,” said Natalia Krapiva, Tech Legal Counsel at Access Now. “The attack invaded the victims’ privacy, damaged their reputation, and continues to endanger their work and livelihoods. These people — among them, our colleagues and confidants — have little recourse in their home countries because their own governments have declared them criminals simply for advocating for, or reporting on, human rights. NSO actively facilitated targeting of these individuals, and the notion that they should now escape accountability in U.S. courts because they were ‘following orders’ of dictators defeats any notion of justice.”

NSO is not denying that its Pegasus spyware was used to target WhatsApp’s servers to hack victims’ phones, but they claim that they should avoid all accountability in the U.S. courts because they simply acted as agents of foreign governments under the doctrine of “sovereign immunity” — an argument civil society vehemently opposes, and the District Court rejected. However, NSO is now appealing this decision in the 9th Circuit Court.

“Far from a luxury or privilege, the right to privacy underpins our businesses, our friendships, our health, and our advocacy for a better world,” said Peter Micek, General Counsel at Access Now. “The five people sharing their narratives in our brief risk reprisals and persecution for telling their stories. Their struggles demonstrate the danger of digital insecurity, and show why tech companies like WhatsApp must continually counter threats to user rights, via technical measures like strong encryption, policies protecting privacy, and lawyers who back their commitments in court. Now, it’s up to judges to show the rule of law applies online.”

While this case is between two private companies – and will impact not only the entire tech sector, as Microsoft and others filing briefs make clear, but democratic values and processes – it does not provide an opportunity for the victims of NSO’s Pegasus to receive remedy, or to even be heard. With this in mind, Access Now and others highlight for the court the human rights implications of NSO’s hacking and the real-life harm it caused. The brief spotlights those who survived Pegasus’ attack from India, Morocco, Rwanda, and Togo, and argues that the court should not allow NSO to escape accountability in U.S. courts under the sovereign immunity doctrine.

“The repeated and extensive use of NSO Group’s Pegasus spyware to target journalists and their networks contradicts the claims that Pegasus is only used to combat terrorism or criminal activities,” said Courtney Radsch, Director of Advocacy at the Committee to Protect Journalists. “In a year that has seen more journalists imprisoned for their work than ever before and widespread impunity for the attacks on the press, the continued sale and use of NSO’s spyware only serves to make the media’s working conditions around the world more dangerous.”

The amici thank Kyle McLorg, Stephanie Skaff, and Deepak Gupta from Farella Braun + Martel LLP for their pro bono legal assistance in this case.