Facebook last year initiated the lawsuit against NSO Group,
accusing the company of reverse-engineering WhatsApp and using the popular chat
service to send spyware to the devices of approximately 1,400 people, including
attorneys, journalists, human rights activists, government officials, and
others. Facebook acquired WhatsApp in 2014.
NSO Group is now trying to overturn a federal court decision
that allowed the case to proceed.
On Wednesday, eight organisations, including Access Now,
Amnesty International, Reporters Without Borders, and the Internet Freedom
Foundation submitted an amicus, or friend-of-the-court, brief to the federal
appeals court in San Francisco alleging that NSO Group's flagship technology –
a tool known as Pegasus – is “an insidious spyware product, and many of NSO's
customers are repressive regimes that use Pegasus for insidious ends.”
According to NSO Group's marketing materials, once Pegasus
has been covertly placed on a mobile phone, it can gather information about the
device's location, access its camera, microphone and internal hard drive, and
record emails, phone calls and text messages.
NSO Group representatives didn't respond to a request for
comment. The company has previously said that its products are “used to stop
terrorism, curb violent crime, and save lives.”
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Earlier this year, NSO Group argued that Facebook's case
should be thrown out on the grounds that the court has no jurisdiction over its
operations. The company said in a April 30 filing that it doesn't dispute that
its Pegasus spyware was used to break into 1,400 devices between April and May
2019. However, it argues that it has “derivative sovereign immunity” because
the technology was deployed not by the company itself, but by foreign
governments who purchased it.
In their brief submitted on Wednesday, the civil society
groups urge the court not to grant NSO immunity, on the grounds that doing so
would undermine “fundamental international legal protections for privacy, free
expression and association.” The groups cited examples of people allegedly
targeted by the spyware – including a Catholic priest in Togo, a Rwandan human
rights activist, an Indian lawyer, and a Moroccan professor.
“It is exactly like being undressed by someone in public,
stripped naked, and you are powerless before an invisible hand and a terrifying
faceless force,” said the Rev. Pierre Marie-Chanel Affognon, who promotes
constitutional and electoral reform in Togo, in the brief filed by the advocacy
groups.
Separately, technology giants including Microsoft, Google,
and Cisco are also backing Facebook in the case. In an amicus brief filed on
Monday, the companies argued that granting NSO Group immunity would “further
encourage the burgeoning cyber surveillance industry to develop, sell and use
tools to exploit vulnerabilities in violation of US law.”
The companies said they were concerned that NSO Group's
spyware tools, and the security flaws that they rely on to break into devices,
could ultimately be obtained by “malicious actors other than the initial
customer,” whom they said could use the technology to “cripple infrastructure,
commit large-scale financial crime, or cause other catastrophic damage.”
The case is WhatsApp Inc. v. NSO Group, 19-cv-07123, US
District Court, Northern District of California (Oakland).
Bloomberg