POLITICO: NSO falters in bid to shut down suit over hacking of WhatsApp

April 12, 2021

NSO Group’s request to dismiss Facebook’s lawsuit alleging the Israeli technology firm’s software was used to monitor dissidents on behalf of foreign governments appears headed for denial by Ninth Circuit judges who suggest discovery and potential commentary from the US State Department are needed, this article reported. O’Melveny is representing Facebook in the case. 

The consideration before the panel is whether a foreign private entity is afforded the same immunity as foreign states. “Shouldn’t we have some sort of a signal from the State Department, from the executive branch, about — to guide those considerations instead of just as a court sort of leaping out into a whole brand new area that from that perspective nobody’s ever gone … without any lead from the executive branch?” asked one of the circuit judges.

“We have no foreign state that’s come forward on NSO’s behalf. We don’t even know who those states are,” said O’Melveny partner Michael Dreeben. “It’s a private multinational company that’s selling spyware around the globe,” he added, also reiterating the need for corporations to be viewed differently than individuals, who sometimes are afforded the same immunity as states.

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