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WhatsApp and Facebook Take the NSO Group to Court

March 7, 2023 Media Coverage
Shoot The Messenger: Espionage, Murder, & Pegasus Spyware

Kyle McLorg was interviewed for the Shoot The Messenger: Espionage, Murder, & Pegasus Spyware investigative podcast episode “WhatsApp and Facebook Take the NSO Group to Court” produced by Exile Media in collaboration with The Committee To Protect Journalists, where he and Access Now’s Tech-Legal Counsel Natalia Krapiva talked about WhatsApp’s lawsuit against NSO Group Technologies Ltd. The lawsuit centers on spyware company NSO Group’s use of WhatsApp and its servers to infect the phones of 1,400 individuals around the world with its Pegasus spyware technology, including at least 100 civil society actors.

Kyle represented Access Now, Amnesty International, Reporters Without Borders, the Committee To Protect Journalists, and several other civil society organizations in submitting an amicus brief to the 9th Circuit arguing against NSO Group’s appeal seeking foreign sovereign immunity from WhatsApp’s suit.

Listen to the podcast here.

Additional Case Information:

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, Kyle assisted Access Now in submitting a letter to the Solicitor General’s office urging it to 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 denying NSO’s petition for certiorari. The case will now proceed to the discovery phase in the Northern District, along with a similar suit against NSO by Apple Inc., which has been on hold pending the Supreme Court’s decision. Trial in the WhatsApp v. NSO case is set to begin on December 2, 2024.

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