November 15, 2021
[Cross-posted from Just Security]
By William S. Dodge
In 2019, the messaging platform WhatsApp sued NSO Group, alleging that the Israeli company sent spyware through WhatsApp’s servers to approximately 1,400 mobile devises in violation of state and federal law. NSO argued that it was immune from suit because it was working on behalf of undisclosed foreign governments. Yesterday, the Ninth Circuit rejected that argument. (Disclosure: I submitted an amicus brief in support of WhatsApp, along with Sarah Cleveland and Chimène Keitner).
The Ninth Circuit held that the Foreign Sovereign Immunities Act (FSIA) “occupies the field of foreign sovereign immunity as applied to entities and categorically forecloses extending immunity to any entity that falls outside the FSIA’s broad definition of ‘foreign state.’” In Samantar v. Yousuf, the Supreme Court held that the FSIA does not apply to foreign officials, whose immunity is governed instead by federal common law. Based on Samantar, NSO argued that it too could claim immunity even though it fell outside the FSIA. As the Court of Appeals noted, however, “[w]hile the FSIA was silent about immunity for individual officials, that is not true for entities—quite the opposite. . . . If an entity does not fall within the Act’s definition of ‘foreign state,’ it cannot claim foreign sovereign immunity. Period.”
Because the Ninth Circuit held that the FSIA comprehensively addresses the sovereign immunity of entities, it did not reach the question whether NSO would otherwise have been entitled to immunity under the common law. The answer to that question is also “no.” Chimène Keitner and I have recently argued that U.S. courts developing the federal common law of foreign official immunity should not extend more immunity than is clearly required by customary international law. In any event, as explained in the amicus brief, there is no support in either international law or U.S. case law for extending foreign official immunity to companies. To echo the Court of Appeals, foreign official immunity is for foreign officials. Period.
As WhatsApp’s civil suit against NSO moves forward, it is also worth noting the Commerce Department’s decision last week to add NSO and another Israeli company to the Entity List for supplying spyware to foreign governments that used it to target government officials, journalists, activists, and others, a decision that effectively prevents the NSO from receiving U.S. technology. NSO is learning the hard way that having government clients does not shield it from the consequences of its actions.
