Update: January 10, 2023 — In a massive win for victims of mercenary spyware across the world, the U.S. Supreme Court denied NSO Group’s petition to review its sovereign immunity claim.
“Recent revelations about NSO Group suggest that the vilified company continues to facilitate the use of spyware against human rights defenders and civil society globally,” said Sanjana Srikumar, Legal Fellow at Access Now. “This decision is an important victory, a battle won towards ensuring that victims of these human rights abuses are able to hold such companies accountable.”
Access Now supports the U.S. Supreme Court’s decision, and encourages the Northern California District Court to move forward with the discovery phase of the lawsuit immediately.
Access Now, with other civil society partners, spotlighted the experience of victims of this spyware from India, Togo, Rwanda, and Morocco, in an amicus brief filed before the 9th Circuit Court of Appeals in 2020. This latest decision affirms the 9th Circuit decision, and allows WhatsApp’s lawsuit to proceed, along with other cases filed by Apple and a recent lawsuit by members of a Central American news organization, who were victims of NSO spyware.
Access Now thanks Farella Braun + Martel LLP for its continued pro bono legal assistance in this case.
Update: November 22, 2022 — Access Now welcomes the U.S. Solicitor General’s amicus brief, urging the U.S. Supreme Court to deny NSO Group’s petition to review its sovereign immunity claim.
In a strong rebuttal to NSO’s arguments, the Solicitor General stated that “NSO plainly is not entitled to immunity here.” According to the Solicitor General, not only did the U.S. government decline to support NSO’s claim, they clearly indicated that NSO’s activities present a threat to the U.S. national security interests by adding NSO to the Commerce Department’s Entity List for “develop[ing] and supplyi[ng] spyware to foreign governments […] to maliciously target government officials, journalists, businesspeople, activists, academics, and embassy workers.” The fact that NSO has been placed on the Entity List “for the very type of activities allegedly at issue in this case” further sets NSO apart from any other companies that might seek such immunity in the future, said the Solicitor General.
“NSO took a gamble by asking the U.S. government to weigh in on their sovereign immunity claim,” said Natalia Krapiva, Tech-Legal Counsel at Access Now. “Fortunately, the Solicitor General’s opinion, along with the Department of Commerce ban list and other proposed measures, are clear signs that spyware companies cannot go around violating human rights and threatening U.S. interests without being held accountable.”
In August, Access Now and partner organizations submitted a letter to the Office of the Solicitor General, asking the office to consider NSO’s human rights conduct in its determination, as well as an amicus brief with the 9th Circuit Court of Appeals, highlighting the harms of NSO’s spyware on human rights defenders and journalists around the world.
Access Now is urging the Supreme Court to seriously take on board the Solicitor General’s findings, in addition to the submissions by civil society, in making its decision on NSO’s appeal.
Update: October 10, 2022 — Access Now fully supports members of the U.S. House Intelligence Committee’s recommendations to U.S. Secretary of State Antony Blinken and U.S. Commerce Secretary Gina Raimondo, which urged “clear and determined action” against commercial spyware. This action is a step towards accountability for the purveyors of surveillance technology, and a moratorium limiting the sale, transfer, and use of these invasive tools.
In their call, the lawmakers cited Access Now and partners’ letter, which outlines the reported abuses of Pegasus spyware over the past year. Through a letter, the House Intelligence Committee pushed for continuous updates to the Commerce Department’s Entity List — which puts restrictions on foreign companies that threaten U.S. interests — close monitoring of potential abuses to ensure spyware companies are not getting around the restrictions, and work with other states to ban foreign commercial spyware.
Costa Rica remains the first and only country to support Access Now’s call for a moratorium — the U.S. and other countries must join the wave of pressure against this dangerous and unchecked industry.
August 24, 2022: NSO Group must be held accountable for facilitating human rights abuses around the world. This week, Access Now and partner human rights organizations wrote to the U.S. Departments of Commerce, State, Energy, and Defense calling on them to ensure that NSO Group remains on the Entity List — a trade restriction list.
“There is clear evidence that NSO Group’s Pegasus spyware continues to be used by governments to engage in secret surveillance of journalists around the world,” said Michael DeDora, US Advocacy Manager of the Committee to Protect Journalists. “This is a direct threat to freedom of the press, and the free flow of information. The U.S. government must hold NSO Group accountable for their violations and send a firm message to the world that this behavior will not be tolerated.”
NSO Group was originally added to the list in response to the company’s threats to human rights and national security, on November 2, 2021. These threats remain unmitigated, and this list is where the company must remain.
Earlier this month, Access Now and coalition partners also urged the U.S. Solicitor General to oppose NSO Group’s claims before the U.S. Supreme Court that it is entitled to sovereign immunity before U.S. Courts — it should not be. The Solicitor General will be providing an opinion to the Supreme Court on NSO’s appeal.
“NSO Group produces technology that stalks, invades, and destroys the lives of those it is unleashed upon,” said Natalia Krapiva, Tech-Legal Counsel at Access Now. “The creator and distributor of Pegasus cannot be given immunity merely because it contracts with governments. We must ensure there is a domestic remedy for these global violations. NSO Group cannot be allowed to violate the rights of human rights activists and journalists with impunity.”
Both of the letters highlight evidence that NSO Group’s spyware continues to be used at a massive scale against human rights defenders, journalists, and government officials by repressive regimes, despite the Entity List designation, and a lawsuit filed by WhatsApp suing the company for targeting peoples’ devices through the communications app.
Access Now and coalition partners continue to demand accountability not just for NSO Group, but the entire unchecked spyware industry, including through a moratorium limiting the sale, transfer, and use of these cyber weapons. Read the Surveillance Technologies Accountability Project’s guide to human rights due diligence for shareholders who may have investments in surveillance technologies.
Access Now and partners thank Kyle McLorg from Farella Braun + Martel LLP for his pro bono legal assistance with the August 3 letter to the U.S. Solicitor General.