Posted on : Thursday 12th March 2020 12:11 PM
WhatsApp has said its lawsuit against the Israeli spyware maker NSO Group encountered an unusual delay because of a legal holdup involving the government, raising questions about whether Israel will play a role in the company’s case.
WhatsApp filed its lawsuit in October, alleging that NSO Group had hacked 1,400 of its users, including journalists, senior diplomats, government officials and human rights activists.
In a recent series of legal filings, NSO Group – which only recently hired a lawyer in the case – accused Facebook, which owns Whatsapp, of lying to court when it said it had served its lawsuit against the group under the protocols of a legal process known as the Hague Convention. The convention allows litigants to serve defendants with legal documents in foreign countries.
“Friday’s filing was necessary because Facebook lied to the court in its 27 February application for default, saying that service was complete under the treaty governing international service of judicial documents known as the Hague Convention,” NSO Group said in a statement.
WhatsApp said in a court filing that it had not been aware of correspondence from the Israeli legal authorities at the time of its earlier filing, and blamed an “administrative oversight”.
In its claim, NSO Group said that Israel had not formally completed the process. In response, WhatsApp filed documents, including emails, that pointed to what it called an unusual delay in Israel’s use of the Hague Convention.
In one exchange filed to the court in California, a lawyer representing WhatsApp wrote an exasperated email to an Israeli court official in which he said he had already submitted information in his Hague Convention application that the Israeli official claimed was missing.
“I am thoroughly confused, and must question whether we are discussing the same requests,” wrote Aaron Lukken, who is representing WhatsApp. He added that in seven years of submitting similar requests to other authorities, he had never been asked similar questions.
A court official responded by saying the requirements were standard practice.
It is unclear whether the legal spat represents a commonplace bureaucratic hurdle or whether, as WhatsApp suggested, the delay was unusual.
NSO Group has strenuously denied the allegations against it in press statements, and has vowed to fight the legal action. It has said that its hacking technology is used by governments and law enforcement officials to fight crime and terrorism.
A judge in the case recently ruled in favour of WhatsApp and allowed a default process to begin, after NSO Group failed to respond to the legal proceeding. That changed on Friday, when the group made its first appearance in the case. WhatsApp has agreed that the default ruling ought to be vacated, now that NSO Group has responded to its claim.
The companies are now wrangling over NSO Group’s demand for a delay in the proceedings and its claims that Facebook had used “underhanded tactics” to deceive the court into thinking it has successfully serviced its lawsuit against the group.
WhatsApp has, in turn, pointed to NSO Group’s public statements about the case, which have made it clear the company has been aware of the litigation since it was filed in October.
NSO Group declined to comment further. WhatsApp declined to comment.
Israel classifies NSO Group’s spyware products as weapons, which means the government ultimately controls and licences what the firm is able to sell abroad.
The government guards details of its weapons sales closely.
Rights groups have accused Israel of inadequately restricting sales to foreign governments. They argue there is a conflict of interest because the government could benefit from deregulation of the private sector to boost diplomatic ties with some state buyers.
Amnesty International and other rights groups took legal action last year against Israel’s defence ministry, demanding it revoke NSO Group’s export licence following accusations that activists were targeted.
A Tel Aviv court decided in January to hold the trial behind closed doors on national security grounds. Danna Ingleton, the deputy director of Amnesty Tech, condemned the decision at the time. She said there was a clear public interest for the case to be heard in an open court.
After that court decision, Ingleton raised questions over the “cosy complicity between governments and the shadowy surveillance industry”.
The Guardian understands a judgement has not yet been made.
In a separate case in Israel, the prominent Saudi activist, Omar Abdulaziz, has also sued NSO Group. Has argued in his lawsuit that Saudi spies used its Pegasus spyware to read his conversations with Jamal Khashoggi, the Washington Post columnist later murdered in the Saudi consulate in Istanbul.
The judge in that case found in January that no grounds for dismissal and refused an NSO Group request that it be held in secret.
An NSO Group spokesperson said at the time that the company would appeal against the decision. “The latest judgement was part of an interim proceeding which did not address the merit of [Abdulaziz’s] allegations; we remain confident that, once considered, the court will reject them,” he said.
The Guardian contacted the Israeli government for comment on Tuesday, which is a public holiday in Israel.
Thursday, 2nd April 2020