U.S. Supreme Court Denies NSO Group’s Petition To Review Its Sovereign Immunity Claim

Provided legal assistance to Access Now and a coalition of civil society organizations to draft and file an amicus curiae brief in the 9th Circuit Court of Appeal’s consideration of NSO Group Technologies Ltd. v. WhatsApp Inc. The NSO case originated in the United States District Court for the Northern District of California after WhatsApp alleged that NSO infiltrated its servers to inject its Pegasus spyware technology onto the phones of WhatsApp’s users, including dissidents, journalists, and human rights activists working abroad. The question on appeal was whether NSO was entitled to immunity as an agent working on behalf of sovereign governments, and Access Now’s amicus brief argued that it should not. In November 2021, the 9th Circuit released its decision agreeing with WhatsApp and Access Now’s position and declining to afford NSO that immunity. You can read Access Now’s amicus curiae brief here.

NSO filed a petition for writ of certiorari to the Supreme Court in the hopes that the Court would review and overturn the 9th Circuit’s decision. Rather than ruling on NSO’s petition, the Court requested the opinion of the Solicitor General’s Office as a means of obtaining the United States government’s view. In August 2022, we assisted Access Now in submitting a letter to the Solicitor General’s office urging it recommend that the Court deny NSO’s petition, and in November 2022, the Solicitor General did just that.

After reviewing the briefs, including the Solicitor General’s brief, the Supreme Court issued an order on  January 9, 2023 denying NSO’s petition for certiorari. The case will now proceed to the discovery phase in the Northern District.