Access Now welcomes the historic ruling in the case of WhatsApp v NSO Group, where the U.S. District Court of Northern California found that NSO violated federal and California state hacking statutes and breached WhatsApp’s Terms of Service by targeting WhatsApp’s users and infrastructure with Pegasus spyware. The partial summary judgment decision is the first major court victory against NSO Group in the world. It comes after five years of fierce legal battles between the two companies that went all the way to the U.S. Supreme Court.
Access Now called for accountability in 2019, when more than 100 civil society victims were identified in the targeting of 1,400+ WhatsApp users. In December 2020, Access Now, along with Amnesty International, Committee to Protect Journalists (CPJ), Internet Freedom Foundation (IFF), Paradigm Initiative, Privacy International, Reporters Without Borders (RSF), and Red en Defensa de los Derechos Digitales (R3D), with pro bono assistance from Farella Braun + Martel LLP, submitted an amicus brief when the case was heard by the U.S. Federal 9th Circuit Court. Our brief highlighted for the court the human rights implications of NSO’s hacking and spotlighted the stories of civil society Pegasus targets from India, Morocco, Rwanda, and Togo. These victims from diverse professional, national, and ethnic backgrounds told the court how the targeting impacted them in similar – and devastating – ways, and demanded justice. “Being spied on by an authoritarian state does not only spoil your professional relationships, it reduces your social circle too,” former Moroccan journalist Aboubakr Jamaï said in his testimony. “You put at risk your relatives and friends by the mere fact of freely talking to them on the phone.”
After NSO objected to the coalition’s brief, the court rejected NSO’s argument and allowed the victims’ voices to be heard.
In August 2022, after NSO appealed the case to the U.S. Supreme Court and requested the opinion of the U.S. Office of the Solicitor General, Access Now and civil society partners asked the Solicitor General to consider NSO’s human rights conduct and highlighted the harms of NSO’s spyware on human rights defenders and journalists around the world. The Solicitor General’s brief was consistent with the coalition’s recommendations. As a result, the Supreme Court declined to hear NSO’s appeal, sending the case back to the District Court in Northern California.
Since the District Court ruled that NSO is liable, the case will proceed to trial solely on the issue of establishing the damages that NSO should pay to WhatsApp. The trial is expected to take place in March 2025 at the District Court in Oakland.
The District Court decision is a major sign for spyware companies around the world that the period of impunity is winding down. We call on other tech companies as well as governments to use judicial mechanisms and other tools at their disposal to hold spyware companies accountable for illegal conduct and to ensure respect for human rights across the industry. With appropriate legal and financial support, civil society will continue monitoring the global reach and adverse impacts of the targeted surveillance sector and its harmful products and services. We look forward to greater collaboration with stakeholders across governments, the private sector, and legal and technologist communities.
Access Now and partners are grateful to Kyle McLorg, Stephanie Skaff, and the late Deepak Gupta for their pro bono assistance throughout this case while at Farella Braun + Martel LLP.