Israeli spyware maker NSO Group took the paper out of Hollywood to avoid the legal consequences of producing and selling tools that hack WhatsApp phone users.
In an appeal to the Ninth Circuit Court of Appeals of the California Court of Appeals, what is usually a dry legal profession reads like a spy thriller. In October 2019, a Western European law enforcement team approached her husband, she starts. Target: an Islamic state terrorist planning an attack during the Christmas period.
The terrorist we found was using WhatsApp to communicate and an elite surveillance team was watching him. But, uh… Then the suspect’s phone suddenly went dead. WhatsApp sent him and 1400 other users a warning that his messages were being followed. So he dropped the phone and denied the investigators their primary source of information. As an EU official put it, WatsApp shut down the operation.
This is all very funny, but WhatsApp sees it differently: He is tired of the NSO group that develops software that exploits security holes in their chat rooms to compromise people’s phones and then sells software to authoritative remote hacking and device tracking modes. For every elite surveillance team that detects a terrorist, there are a dozen bureaucrats who read private reports from lawyers, journalists and activists, not to mention recording their phone calls, activating their camera and microphone, and pinging their location in real time using NSO operations and remote monitoring techniques. WhatsApp wants this to stop.
Last year around this time, a Facebook company sued the INS for illegally hacking smartphones.
And those two have been at each other’s throats ever since. In April this year, the NSO informed us that Facebook itself is trying to get a spyware license from the NSO in order to track its users. When the NSO did not appear before the U.S. state court, Facebook declared victory, and the NSO accused them of lying and failing to produce legal documents.
Immunity
Since then, most legal disputes involving NSOs have arisen alleging that Facebook simply cannot sue it: first, because it is not using the program, but its customers; second, because it enjoys legal immunity because it has been sold to governments; and third, because it does not have an office in California anyway. Of course Facebook disagrees.
Most of these claims were rejected in July, when Phyllis Hamilton District Judge ruled that the NSO, as a foreign civil servant, was not entitled to immunity and could not claim immunity from its government clients.
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It has rejected other NSO requests for legitimate access to WhatsApp servers, as well as Facebook’s claim that NSOs have impeded people’s access to digital services. However, to show that NSI will use its resources to fight at all times, the issue of legal immunity will be raised again this week in a speech [PDF] before the Ninth Circuit Court of Appeals.
The NSO claims that it enjoys immunity, and makes some remarkable allusions to the activities of the U.S. secret services in the Hollywood scenario. The US lives in a dark and powerful world and seems to indicate that it could be in everyone’s interest to leave it and not drag it into the American legal system.
Abroad, both in Western Europe and around the world, technologies such as NSOs are often used to investigate criminals who use WhatsApp to plan terrorist attacks, exploit children, rob banks, trade weapons and commit other serious crimes, according to the file. What? App doesn’t like that. It has taken steps to disrupt these investigations, both by warning the targets of the investigation and by refusing to cooperate with the authorities after the attacks.
Foreign official
Then he repeats his previous point: Abroad, not the NSOs, has control over the technology and decides how and when to use it. The ONS offers limited support, which is exclusively intended for its foreign customers. And the home state of the U.S., Israel, controls and regulates every aspect of the U.S.’s activities.
We’re moving forward: By suing the NSO for its conduct as an agent of foreign states, WhatsApp is asking the U.S. courts to intervene in the sovereign affairs of those states. This court must dismiss this request. And then he realizes that if the U.S. legal system collapses with respect to the U.S., it can easily have a counterproductive effect on Americans abroad. He contests Judge Hamilton’s decision, and he claims… First, the court has decided that no foreign official or authorised agent may be granted immunity on the ground of his conduct unless the foreign State is obliged to take a decision in respect of that official. This limitation is contrary to the usual rules of law applicable to cases and to the conduct-based approach to immunity adopted by the U.S. State Department. It also undermines the immunity of a foreign state and exposes U.S. officials to the risk of reprisals abroad.
Americans also use companies to spy abroad: The court decided that an NSO, as a foreign company, cannot receive a separate form of immunity, which the court referred to as derived sovereign immunity. Derived sovereign immunity, however, is no different from behavioral immunity and is not limited to U.S. companies.
A warning to the contrary, as the court did, violates the principles underlying behavioural immunity and threatens to use private contractors for intelligence and military operations.
It is followed by another 60 pages of legal arguments, in which the same paragraph is sometimes filled with tangential references to case law, even though the message is the same – and in fact it is not addressed to WhatsApp, but to anyone who has an influence on the U.S. government, administration and the legal system. It can be summarized in one question: Are you sure you want to open Pandora’s box?
The story of a spy, from the beginning, is about getting people’s attention. And it worked because we wrote that story and you just read it. ®
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