A coalition of human rights and press freedom groups have filed a brief supporting Facebook's lawsuit against the Israeli surveillance technology company NSO Group, arguing that the “very core of the principles that America represents” are at stake in the case.
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.”
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).
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