Before the news had broken that NSO Group’s clients were utilizing its powerful spyware to target journalists, dissidents, activists, religious leaders, opposition party members, and anyone else that might have irritated the autocrats and human rights abusers that made up a disproportionate percentage of its customer list, NSO was sued by Meta and WhatsApp.
That lawsuit alleged NSO Group had illegally accessed and utilized WhatsApp’s software and servers to distribute malware to surveillance targets. It’s a problematic lawsuit — one that seeks to see the CFAA (which has been abused perpetually since its inception) read as outlawing any access that might violate terms of service, including access that simply allowed NSO software to reach targets using WhatsApp.
NSO has since tried multiple times to have the lawsuit thrown out. One of its more creative efforts tried to portray NSO Group as nothing more than a stand-in for the governments it sold to. By portraying itself this way, NSO hoped to invoke sovereign immunity. That argument was rejected by two consecutive levels of the judiciary. NSO would have been better served by sticking to its first argument: that it could not be held directly accountable for actions performed by its customers, especially since that’s pretty much the only argument it’s left with at this point in time.
Having failed to get the lawsuit dismissed, the litigation moved forward. Finally, it reached a point NSO hoped it never would: discovery. Earlier this year, the court ordered NSO to turn over a bunch of info, including the source code of the malware that traveled through Meta’s servers to infect WhatsApp users.
The source code has yet to be delivered to the court and WhatsApp. It may never get there. As Harry Davies and Stephanie Kirchgaessner report for The Guardian, NSO Group called on a higher power to help it dodge its courtroom obligations:
Israeli officials seized documents about Pegasus spyware from its manufacturer, NSO Group, in an effort to prevent the company from being able to comply with demands made by WhatsApp in a US court to hand over information about the invasive technology.
Documents suggest the seizures were part of an unusual legal manoeuvre created by Israel to block the disclosure of information about Pegasus, which the government believed would cause “serious diplomatic and security damage” to the country.
Neat! And it comes with a form of plausible deniability built in: the Israeli government could claim it seized this information as part of its own investigation of NSO Group. Of course, that investigation is already closed and it wasn’t publicly announced until long after NSO was in (international) hot water. The government concluded it did nothing wrong when it used NSO spyware. It didn’t have much to say about NSO itself, although it did (very belatedly) limit the countries NSO could sell to.
But this is just a weird form of regulatory capture. NSO Group was formed by former Israeli intelligence officers. For years, Israel’s government helped broker deals for NSO with nearby nations, engaging in a malware-powered form of diplomacy.
The last thing NSO wanted was for this lawsuit to move to the point where it might need to start producing documents. The outstanding order for code production posed a threat to NSO’s secrecy, even if there’s almost zero chance it would be denied any request to seal these documents. With NSO being mostly former government employees and the Israel government being composed of current government employees, NSO asked and received. With this move, a sovereign that is not party to this lawsuit has done what NSO couldn’t on its own: prevent an American entity from obtaining its source code.
The origin of this information isn’t NSO or the Israeli government. It’s the product of leaks and hacking. And it shows NSO knew this reckoning was coming, long before it became somewhat of a household name following the leak of targeting data. This appears to have happened not long after WhatsApp filed its lawsuit against NSO in late 2019.
Israel’s hidden intervention in the case can be revealed after a consortium of media organisations led by the Paris-based non-profit Forbidden Stories, and including the Guardian and Israeli media partners, obtained a copy of a secret court order relating to the 2020 seizure of NSO’s internal files.
Details of the seizures and Israel’s contacts with NSO regarding the WhatsApp case are laid bare in a separate cache of emails and documents reviewed by the Guardian. They originate from a hack of data from Israel’s ministry of justice obtained by the transparency group Distributed Denial of Secrets and shared with Forbidden Stories.
According to the documents, NSO first approached the Israeli government in the early months of 2020, asking for a “blocking order” that would hopefully prevent it from having to hand over anything to WhatsApp. When WhatsApp served its discovery request in June 2020, NSO Group and government officials met to “discuss issues related to disclosure.” After some back-and-forth between NSO’s legal reps and government officials, the government performed a perfunctory raid of NSO offices for the sole purpose of leaving it with almost nothing to turn over in response to the US court order.
Three days later, in mid-July 2020, Israel made a significant but secret intervention. At an urgent meeting with NSO, Israeli officials presented the company with an order issued by a Tel Aviv court granting the government powers to execute a search warrant at its office, access its internal computer systems and seize files.
This subterfuge appears to have worked, at least so far. According to WhatsApp’s lawyers, NSO has only turned over 17 pages of documents in response to its discovery requests. Obviously, none of these documents are responsive to the court order demanding NSO turn over its software to WhatsApp.
On the surface, it might not look any more unusual than, say, the Justice Department filing a motion to keep documents from being produced by one of its contractors in the interest of public safety, operational secrecy, or whatever other excuse it might use. But it’s nowhere near comparable. NSO Group never informed the US court that these documents had been seized. And it appears its lawyers — some of which are US-based — never informed the court it was seeking the assistance of the Israeli government to keep these documents from being produced.
It will certainly be interesting to see how the court responds to these revelations. However, sanctions can’t make NSO Group turn over information now in the hands of its own personal Jesus: the Israeli government. And it’s unlikely any US court has the power to pierce the sovereign immunity that controls this action, no matter how transparent the self-interest.
