NEWS
WhatsApp trumps NSO in court: a historic ruling amid political change
NSO Group is responsible for illegally installing spyware on phones, a California court ruled last December.
By Magdalena Hervada
January 13, 2025
After five years of legal battles, the Israeli firm that sells Pegasus spyware was found guilty in the landmark WhatsApp v NSO case, Judge Phyllis Hamilton of California’s Northern District court ruled. The decision was hailed as a victory by privacy advocates, but Donald Trump’s impending return looms over the aftermath of the case. “This ruling is a huge win for privacy,” WhatsApp head Will Cathcart wrote in a message on X (formerly Twitter) on December 21, 2024, one day after the decision.
Source : rawpixel.com / National Archives and Records Administration
NSO Group, the star player of the Israeli cyber-espionage industry, was found guilty for attacks carried out with Pegasus, a powerful spyware tool capable of remotely infiltrating smartphones and turning them into digital spying machines. The court concluded the company had used this tool to hack the phones of 1,400 people via a vulnerability in the secure messaging platform WhatsApp. Meta owns WhatsApp, which filed the suit in October 2019.
Hamilton’s landmark ruling holds NSO accountable for its customers’ use of Pegasus. The company was accused of infiltrating WhatsApp’s servers during a several week period in May 2019, during which its state clients used Pegasus to target journalists, human rights activists and political dissidents from around 20 different countries. According to Hamilton, the evidence provided shows that the Pegasus code had been forced through WhatsApp’s California-based servers on 43 occasions during that time.
Pegasus, which is exclusively sold to governments, can infiltrate and access all of a smartphone’s content remotely. NSO insists that its intended use is exclusively to “prevent and investigate terrorism and crime.” However, Forbidden Stories and its partners’ 2021 Pegasus Project revealed that the spyware was widely misused.
John Scott-Railton, a senior researcher at the University of Toronto’s Citizen stated on his X account that this “landmark case,” will have “huge implications” for spyware companies. He believes the case sets a strong precedent: “Today’s order is a powerful sign for them (the victims): accountability can happen for companies like NSO.”
In his own post, Cathcart said WhatsApp believed that “spyware companies could not hide behind immunity or avoid accountability for their unlawful actions.”
Caught between the court and Israel
NSO has always argued in court that it was not responsible for the practical application of its software. However, unsealed court filings show that NSO had admitted to using WhatsApp in order to install Pegasus on “between hundreds and tens of thousands” of target devices. Furthermore, they reveal that “NSO’s customers only push a button to request information from a target device; the installation and extraction process, about which NSO’s customers knew nothing, was ‘a matter for NSO and the system to take care of, not a matter for customers to operate’.”
“This is a relatively new, cutting-edge technology we’re talking about,” Omer Benjakob, a journalist specializing in spyware for the Israeli newspaper Haaretz, explained: “The question of who can be held accountable for it is highly political”.
NSO had also tried to claim sovereign immunity before US courts, given its close links with the Israeli Ministry of Defense, which strictly supervises Pegasus sales. The U.S. Supreme Court denied them this immunity in January 2024.
“WhatsApp had a bold and interesting argument in this case,” Benjakob said. “It was that WhatsApp was not created for this: ‘Even if it is for national security issues, you are misusing our technologies.’”
The state of Israel appears to have played a role in the WhatsApp trial, only somewhat outside the courtroom. An investigation by Forbidden Stories and its partners showed in July 2024 that Israel allegedly obstructed Meta’s legal proceedings. In July 2020, the government ordered the seizure of internal documents at the cybersecurity company to prevent their use in any legal proceedings abroad, and banned all communication on the subject in Israeli media through a gag order. The Israeli government claimed in leaked confidential documents that the disclosure of information on Pegasus could cause “serious diplomatic and security damage” to the country.
The lack of access to some key documents directly affected the verdict, which was based in part on NSO’s non-compliance with the court’s demands. Hamilton, the judge, concluded in her ruling that: “Defendants have repeatedly failed to produce relevant discovery and failed to obey court orders regarding such discovery.”
NSO had most notably been ordered to provide WhatsApp with Pegasus’ source code, as well as the method through which the private messaging servers had been accessed. The company refused to provide this information, which they considered highly sensitive to Israel’s national security.
Instead, they offered to authorize the consultation of part – and not all – of its code, only on Israeli territory and by an Israeli citizen. The judge flatly dismissed this proposal as “simply impracticable.” “NSO was in a very complicated position,” Benjakob said. “They were torn between Israel’s demands, and compliance with the court.”
“Trump’s return could change everything”
Unsealed court filings also revealed that WhatsApp repeatedly spotted and blocked NSO’s attempted intrusions and revoked their access to the application. The spyware company knowingly circumvented these controls, even after WhatsApp filed its case. One version of Pegasus was still active as late as May 2020, according to these documents, and NSO refused to specify whether or not they had made other attempts to access the servers after this date.
WhatsApp is not the only tech giant to have sued NSO in an American court. In 2021, Apple filed a lawsuit against the Israeli company for installing Pegasus on iPhones. However, the lawsuit was dropped in September of 2024 partly as a result of Forbidden Stories’ revelations. Apple stated that the investigation’s existence “presents cause for concern about the potential for Apple to obtain the discovery it needs.”
The next installment of the trial between Meta and NSO will begin this March, and focus only on the amount of damages that NSO will be ordered to pay the American tech giant. “In theory, this could be devastating for them. How we understand and financially measure damages opens up a terrible can of worms for NSO,” Benjakob said. “However,” he cautioned, “these legal cases take a very long time, and tons of different actors will get involved. No one can be sure of the outcome.”
The outcome of this years-long legal procedure could be a turning point for NSO, as well as Israeli security exports. But there are high hopes for the coming political change in Washington, according to Benjakob: “It’s the end of the Biden era, which was tough for the spyware industry. What everyone is assuming is that everything is going to change under Trump.” Under Democratic rule, the US Department of Commerce placed NSO on a blacklist alongside Candiru, another Israeli spyware company.
NSO representatives led a year-long lobbying campaign to be removed from said list, cozying up to members of the Republican party during the 2024 presidential campaign, according to an investigation by The Intercept. Intercept journalists interviewed Ben Freeman, the director of the Democratizing Foreign Policy program at the Quincy Institute. “This absolutely looks like part of NSO Group lobbyists’ ongoing efforts to reverse the firm’s blacklisting,” he said. “Frankly, they’re going to find Republicans an easier target than Democrats for putting pressure on the Commerce Department to delist NSO Group, with many Democrats’ souring on Israel because of the thousands of civilians they’ve killed in the Gaza war.”
“Trump’s return could change everything,” Benjakob warned. During his first term, President-elect Trump displayed unconditional support for right-wing Israeli Prime Minister Benyamin Netanyahu. Trump has already tapped Mike Huckabee, a supporter of the nationalist, annexationist Israeli right, to be the next US ambassador to Israel.
As Benjakob sees it: “These trials are long and complex, so this change in policy could complicate future proceedings against NSO.”
NSO Group and Israel’s Ministry of Justice did not respond to requests for comment.
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