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Malware maker urges judge to drop trial for spying on WhatsApp phone
Hey boss, this is what people imagine when they think of California – or do we need more beach or tacos or something?
Israeli spyware maker NSO Group has denied Facebook's claim that it could be sued in California for using American computer services and having a commercial presence in the United States.
Last October, Facebook and its WhatsApp subsidiary sued the software developer and its subsidiary Q Cyber Technologies in California, claiming that the companies have manufactured, distributed and exploited surveillance software known as Pegasus which remotely infects, hijacks and extracts data from smartphones of WhatsApp users.
NSO Group then filed a motion to dismiss the hacking lawsuit, arguing that it could not be prosecuted in the United States: it enjoys immunity because its customers are governments. The social network last week responded emphasizing that the concept of sovereign immunity does not apply to contractors working for foreign governments and that the NSO software relies on servers provided by the telecommunications service provider of Los Angeles QuadraNet .
ONS last legal salvo, filed Thursday this week in a California court, disputes these allegations. A biz spokesman said his submission to the court, along with an affidavit from NSO group CEO Shalev Hulio, should dispel “several misleading claims” made by Facebook lawyers.
“One of these claims concerns QuadraNet, a California-based telecommunications company,” said the NSO spokesperson in an emailed statement. “As we argued in court, neither NSO Group nor Q Cyber have ever had a contractual agreement with QuadraNet.”
Hulio in his statement says: “neither the accused [NSO or Q Cyber] has never entered into a contract with QuadraNet. “
Claudiu Gheorghe, WhatsApp security manager, a previous filing identified 720 malicious attacks on WhatsApp from IP address 104.223.76.220, a server in California provided by QuadraNet and allegedly managed by NSO.
QuadraNet did not immediately respond to The registerrequest to clarify the account holder for this IP address.
The NSO spokesperson reiterated the claim that the biz does not operate its Pegasus software for its customers. And his legal record says the same: “If the Pegasus messages had passed through the QuadraNet servers, they would have been sent by the clients of NSO, not NSO.”
Spyware maker NSO can't claim immunity, Facebook lawyers insist – it's time to take on the music
The latest ONS file insists that Facebook wrongly rejected the possibility of immunity. Although the law on immunity only applies to governments, the NSO claims that it “has the right to derived sovereign immunity”, based on a 2000 case (Butters v. Vance) in which the fourth circuit held that a private agent in Saudi Arabia was immune to derivatives.
“[Facebook and WhatsApp] challenge the alleged use of Pegasus to send a message to WhatsApp users, which was entirely done by foreign rulers, “said the ONS paperwork.” Plaintiff theory would punish people who offer goods and services to government when the cause of action is based on government use of the product. But providers are not deprived of immunity to derivatives to build tools, or to help governments maintain them so that they can be used when needed. “
The snoop-ware maker also insists that it cannot have violated U.S. fraud and computer abuse law because it was allowed to send messages via WhatsApp – messages that were justly trapped to install its Pegasus malware on victims' devices. He claims that the CFAA only applies to unauthorized access, not to malicious content.
“The plaintiffs claim that WhatsApp messages in NSO format to hide the data that WhatsApp did not want users to send,” said the file. “But NSO was allowed to send messages, so violating WhatsApp limits on the content of those messages does not access WhatsApp servers without permission.”
The biz further contends that any circumvention of technical restrictions would not be considered a violation of the CFAA, comparing its actions to the way hiQ Labs circumvented the technical restrictions put in place by LinkedIn to stop web scraping. The ninth circuit last year statue that web scraping does not meet the CFAA definition of unauthorized access.
“[A]NSO allegedly sent the wrong type of message to WhatsApp servers. This is not a violation of the CFAA, “said the file.
As to Facebook's claim that NSO[ed] server-side call settings and edit[ed] the technical architecture that routes calls through its servers “, this should not even be taken into account because it was not mentioned in the initial complaint, insists the spyware file.
In addition, Facebook had claimed that NSO “had a marketing and sales branch in the United States called WestBridge Technologies, Inc.”, which NSO rejects. The Israel-based biz maintains that it has no control over WestBridge, a Maryland sales and marketing company that sells to US government agencies. In addition, none of the current directors of NSO or Q Cyber reside in the United States.
So in short, NSO says it has no presence in the United States – no management, no sales branch in America – and doesn't use any American IT department, so how can it be sued in the US? State of California?
Facebook declined to comment on the ongoing trial. ®
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