“I find the argument your clients are making on this case remarkable,” said Judge Danielle Hunsaker.
“Shouldn’t we have a signal from the State Department, from the executive branch, to guide these deliberations instead of just jumping into a whole new area as a kind of court, which from this perspective no one has ever left … Without leadership from the executive branch ? Asked Hunsaker, who was appointed by President Donald Trump.
Judge Mary Murguia, a judge appointed by President Barack Obama, pressed NSO attorney Jeffrey Bucholtz whether the firm had ever asked the State Department to weigh up the lawsuit. He did not say definitively whether the company was doing this, stating that there was no such evidence on the file and that he did not know that the company was doing this “in any formal way”.
Pegasus spyware was first discovered on Apple iPhones in 2016 and exploited a vulnerability activated by clicking a missed call link from WhatsApp. This downloaded a virus that could be used by a hacker to control the phone’s microphone and camera, collect passwords, and search email messages. Apple released an update in August 2016 to close the security gaps. Similar problems have been found with Android devices.
At Monday’s 45-minute video argument session, Bucholtz said that every Facebook complaint really rests with the foreign governments that bought NSO’s software, and that Facebook was trying to end those governments’ immunity from litigation in US courts. The attorney also said that the official decisions in question are those that the courts do not normally question.
“We are talking about the use of technology to conduct counter-terrorism investigations at the discretion of a state,” said Bucholtz. “The violation alleged by the plaintiffs is due to the use of the software by the foreign states. … All of this is caused by the use that NSO didn’t do. “
Facebook attorney Michael Dreeben said NSO’s position in the lawsuit was undermined by the lack of a government advocating the company. “We don’t have a foreign state that comes forward on behalf of NSO. We don’t even know who these states are,” he said.
Dreeben acknowledged that private individuals were sometimes given protection under the principles of sovereign immunity, but that informal envoys did unofficial diplomatic work. He said there are good reasons to treat companies differently.
“It’s a private multinational company that sells spyware around the world,” said Dreeben.
Bucholtz was of a different opinion.
“There is no fundamental reason to categorically exclude agents that are entities,” he said.
The panel’s third member, Judge Ryan Nelson, said that NSO may have “pretty good defenses” to some of the allegations Facebook makes, but that it is difficult to say before making a factual finding that all of Facebook’s allegations are unfounded .
“We are kind of asked to put the cart in front of the horse,” said Nelson, a Trump official. “It seems like this should be developed after discovery and further litigation.”
However, Bucholtz said the courts have recognized the importance of using sovereign immunity to prevent discoveries that may interfere with governments’ decisions related to national security. He also said the damage Facebook was exposed to was due to actions by these governments, not NSO’s investigation into vulnerabilities in WhatsApp.
“The behavior that offended them had to be committed by the state actors,” said Bucholtz.
The importance of the case was underscored by the two legal heavyweights that companies relied on for Monday’s arguments. Dreeben is a former assistant attorney general who served as the top advisor to Special Adviser Robert Mueller’s investigation into Russian interference in the 2016 presidential election. Bucholtz is the former acting head of the civil department of the Ministry of Justice.
If NSO goes down at the end of the appeal, it could request a review by a larger group of 9 peopleth Circuit Judges or the Supreme Court.
Even if the company’s efforts to avert the lawsuit fail, it could continue to try the case in court but will likely be forced to produce documents about Pegasus’s development and provide senior executives for tipping.