DOJ Focusing on Wrong Question, Says NSO in SCOTUS Brief

The question of whether Israeli spyware company NSO should receive conduct-based immunity is irrelevant to whether the U.S. Supreme Court should grant certiorari in NSO’s appeal of a 9th Circuit U.S. Court of Appeals decision blocking the company from allegedly accessing the encrypted messages of WhatsApp users, said NSO in a supplementary brief filed in NSO Group Technologies v. WhatsApp (docket 21-1338) Friday. NSO was responding to a DOJ filing (see 2211250017) that urged SCOTUS not to grant cert, but that what NSO said stopped short of endorsing the lower court’s ruling. “The question presented is not whether NSO’s conduct-based immunity defense should ultimately succeed,” said NSO’s filing. “The question is what law governs NSO’s defense -- the FSIA [Foreign Sovereign Immunities Act] or the common law." That question ”is worthy of review even if NSO’s defense ultimately fails.” Even so, “NSO’s circumstances do not support the government’s conclusion that it cannot receive common-law immunity,” the filing said. "Conduct based immunity does not depend on an ad-hoc, standardless assessment of whether the State Department chooses to support a particular defendant,” said NSO.