UPDATE: On January 9, 2023, the U.S. Supreme Court denied NSO Group's request to hear the case, leaving in place the Ninth Circuit's opinion.
Vendors of surveillance technology can make big money on the global market, frequently by enabling authoritarian governments to spy on journalists and activists. That’s why, for years, EFF has called for more accountability against technology companies that facilitate human rights abuses by foreign governments. Now, the Ninth Circuit Court of Appeals has issued an important opinion that will help litigants hold these companies accountable.
The court rightfully determined that, because the NSO Group is a private company, it is not immune from the lawsuit even though it serves foreign government clients.
Almost a year after EFF attorneys filed a brief with the Ninth Circuit in support of WhatsApp’s lawsuit against the notorious Israeli spyware company NSO Group, the court issued a ruling that the company is not immune from the lawsuit alleging NSO helped its client governments target members of civil society, including Rwandan political dissidents and a journalist critical of Saudi Arabia.
The court rightfully determined that, because the NSO Group is a private company, it is not immune from the lawsuit even though it serves foreign government clients. The court addressed an open question in the case law. It has been clear that the Foreign Sovereign Immunities Act (FSIA) by its terms only applies to corporate entities owned by foreign governments. But there was an open question as to whether private corporations, whose clients are foreign governments, may invoke immunity based in common law, the rules described by court opinions rather than enacted by Congress. The Ninth Circuit said no. It held that Congress intended the statute to comprehensively address the foreign sovereign immunity of corporations, and thus the FSIA forecloses applications of immunity to corporations via common law.
Cybersurveillance companies like NSO Group shouldn’t be making a profit from spying on journalists, human right activists, and others deemed political enemies of foreign states. These companies must be held responsible for their role in not only violating digital rights – but also the very real-world consequences of that spying, including unlawful arrest, torture, and even extrajudicial killings. The Ninth Circuit’s ruling brings them one step closer.