WhatsApp Inc.v. NSO Group Technologies Ltd., No. 20-16408 (9th Cir. 2021)
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WhatsApp sued under the Computer Fraud and Abuse Act and California state law, alleging that NSO, a privately owned and operated Israeli corporation, sent malware through WhatsApp’s server system to approximately 1,400 mobile devices. NSO argued that foreign sovereign immunity protected it from suit and, therefore, the court lacked subject matter jurisdiction because NSO was acting as an agent of a foreign state, entitling it to “conduct-based immunity”—a common-law doctrine that protects foreign officials acting in their official capacity.
The district court and Ninth Circuit rejected that argument. The Foreign Sovereign Immunity Act, 28 U.S.C. 1602, occupies the field of foreign sovereign immunity and categorically forecloses extending immunity to any entity that falls outside the Act’s broad definition of “foreign state.” There has been no indication that the Supreme Court intended to extend foreign official immunity to entities. Moreover, the FSIA’s text, purpose, and history demonstrate that Congress displaced common-law sovereign immunity as it relates to entities.
Court Description: Foreign Sovereign Immunity. The panel affirmed the district court’s order denying a private Israeli corporation’s motion to dismiss, based on foreign sovereign immunity, an action brought under the Computer Fraud and Abuse Act and California state law. WhatsApp Inc. and Facebook, Inc., alleged that defendant, a privately owned and operated Israeli corporation, sent malware through WhatsApp’s server system to mobile devices. The panel held that it had jurisdiction under the collateral order doctrine to review the district court’s order denying defendant’s motion to dismiss based on a claim of immunity from suit. The panel held that the Foreign Sovereign Immunity Act occupies the field of foreign sovereign immunity and categorically forecloses extending immunity to any entity that falls outside the Act’s broad definition of “foreign state.” The panel rejected defendant’s argument that it could claim foreign sovereign immunity under common-law immunity doctrines that apply to foreign officials. The panel stated that there was no indication that the Supreme Court in Samantar v. Yousuf, 560 U.S. 305 (2010), intended to extend foreign official immunity to entities. Moreover, the FSIA’s text, purpose, and history demonstrate that Congress WHATSAPP V. NSO GROUP TECHNOLOGIES 3 displaced common-law sovereign immunity as it relates to entities. The panel therefore affirmed the district court’s order.
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