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Federal court rules WhatsApp and Facebook's malware exploit case against NSO Group can proceed

Catherine Shu
·2-min read
BERLIN, GERMANY - FEBRUARY 25: The Logo of instant messaging service WhatsApp is displayed on a smartphone on February 25, 2018 in Berlin, Germany. (Photo by Thomas Trutschel/Photothek via Getty Images)
BERLIN, GERMANY - FEBRUARY 25: The Logo of instant messaging service WhatsApp is displayed on a smartphone on February 25, 2018 in Berlin, Germany. (Photo by Thomas Trutschel/Photothek via Getty Images)

A U.S. federal court judge ruled on Thursday that WhatsApp and parent company Facebook’s lawsuit against Israeli mobile surveillance software company NSO Group can go forward. Phyllis Hamilton, Chief Judge of the United States District Court of the Northern District of California, denied most of the arguments NSO Group made when it filed a motion to dismiss the suit in April (a copy of her decision is embedded below).

Last October, WhatsApp and Facebook filed a complaint alleging that NSO Group exploited an audio-calling vulnerability in the messaging app to send malware to about 1,400 mobile devices, including ones that belonged to journalists, human rights activists, political dissidents, diplomats and senior government officials.

WhatsApp and Facebook also claim that NSO Group developed a data program called Pegasus that extracted data, including messages, browser history and contacts, from phones, and sold support services to customers, including the Kingdom of Bahrain, United Arab Emirates and Mexico.

In its motion to dismiss the lawsuit, one of NSO Group’s arguments was that its business dealings with foreign governments, which it said use its technology to fight terrorism and other serious crimes, granted it immunity from lawsuits filed in U.S. courts under the Foreign Sovereign Immunity Act (FSIA). In her decision, Judge Hamilton wrote that NSO Group failed to qualify because it was not incorporated or formed in the U.S.

In an email to TechCrunch, a WhatsApp spokesperson said "We are pleased with the Court's decision permitting us to move ahead with our claims that NSO engaged in unlawful conduct. The decision also confirms that WhatsApp will be able to obtain relevant documents and other information about NSO's practices."

In a statement to TechCrunch, an NSO representative said, "Our legal team is reviewing the court’s decision, so we are not in a position to comment in detail at this time. Our technology is used to save lives and prevent terror and crime worldwide, and we remain confident that our conduct is lawful."

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