Litigation and Other Formal Complaints Concerning Targeted Digital Surveillance and the Digital Surveillance Industry

On 29 October 2019, WhatsApp and Facebook filed a complaint against NSO Group/Q Cyber Technologies in the Northern District of California. The plaintiffs allege that, between April 2019 and May 2019, the defendants used WhatsApp servers located in the US and elsewhere to send malware to approximately 1,400 mobile phones and devices. The plaintiffs seek injunctive relief and damages pursuant to the Computer Fraud and Abuse Act and the California Comprehensive Data Access and Fraud Act (Penal Code section 502), as well as for breach of contract and trespass to chattels. A copy of the complaint is available here.

Ghanem Almasarir has brought a civil legal claim for misuse of private information, harassment, and trespass to goods against the Kingdom of Saudi Arabia (KSA). Mr. Almasarir is a prominent Saudi dissident who has lived in the United Kingdom since 2003. He believes that the Saudi government used spyware known as Pegasus, acquired from NSO Group, and that they infected his mobile phones with this in order to modify, extract, and record all information stored on and communicated on these devices. He also believes that the spyware enabled the KSA to access the phones’ microphone and camera in order to see and hear what he was doing. Leigh Day, the firm representing Mr. Almasarir, prepared a press release available here. A claim was issued on 4 November 2019.

On May 14, 2019, Israeli petitioners appealed the Israeli Ministry of Defense (MoD)’s decision to not revoke NSO Group’s export license in relation to the targeting of an Amnesty International staff member. Amnesty International supported the petition and submitted an affidavit. In July 2020, a Tel Aviv court rejected this attempt to force the Israeli MoD to reject NSO Group’s license.

Omar Abdulaziz filed a lawsuit in Israel against NSO Group. According to the New York Times, it alleges that NSO Group helped the Saudi royal court take over his smartphone and spy on his communications with murdered Jamal Khashoggi. NSO Group issued a statement that its products were “licensed for the sole use of providing governments and law enforcement agencies the ability to lawfully fight terrorism and crime.” And that contracts to use NSO Group spyware “are only provided after a full vetting and licensing by the Israeli government”. The company also added that it does not tolerate “misuse” of its products and that if there is “suspicion of misuse”, the company investigates it and takes appropriate action, including suspending or terminating a contract. The lawsuit was filed by Alaa Mahajna, an Israeli lawyer, in cooperation with Mazen Masri, a lecturer at the City University of London. The lawyers said in the court papers that they intend to argue that the exposure of the collaboration between Abdulaziz and Khashoggi “contributed in a significant manner to the decision to murder Mr. Khashoggi.”

Mexican journalists and civil society activists filed a lawsuit against NSO Group in Israel (a Qatari citizen also filed a suit against NSO Group in Cyprus). According to the New York Times, these lawsuits include documents and emails that directly challenge the company’s repeated assertions that it is not responsible for any illegal surveillance conducted by the governments that buy its spyware. These lawsuits were also filed by Alaa Mahajna and Mazen Masri.

In July 2018, the Israeli Justice Ministry said that a former employee of NSO Group has been charged with stealing intellectual property and trying to sell if for $50 million over the Darknet in a manner that could harm state security. The Justice Ministry said that, according to testimony gathered in the case, the former employee’s actions “endangered NSO and could have led to its collapse” and posed a threat to state security.

A federal investigation by Mexican authorities into the misuse of spyware in Mexico was announced by the Mexican government in 2017. However, its efforts appear to have stalled. The New York Times reports that US authorities approached by the Mexican investigators believe it is a sham inquiry and refused to participate.

Bahraini activists have started a legal action against Gamma alleging that the company was involved in the sale of spyware products to the Bahraini government knowing they would be used to crack down on protests during the Arab spring. The claimants say that they were targeted with the FinFisher/FinSpy program, which was manufactured in the UK and sold to the Bahraini government. They also accuse Gamma of providing training to Bahraini government officials on how to correctly use the software, along with technical support and software updates. All allege that the Bahraini government attacked their computers while they were in the UK. The claimants say they were targeted in relation to their pro-democracy campaigning during the Arab spring. Hassan Mushaima, one of the claimants, was jailed for life in 2011 by a military court in Bahrain. The claimants are represented by Leigh Day.

The Electronic Frontier Foundation (EFF) filed a lawsuit in federal court in Washington, D.C. alleging that the government of Ethiopia, using FinFisher/FinSpy, illegally wiretapped and invaded the privacy of EFF’s client, a U.S. citizen on U.S. soil. The United States Court of Appeals for the District of Columbia Circuit ultimately concluded in March 2017 that Ethiopia was immune from suit absent an exception under the Foreign Sovereign Immunities Act, which did not arise here. In response to the decision, EFF argued that the court had “held that foreign governments are free to spy on, injure, or even kill Americans in their own homes–as long as they do so by remote control” and that the decision was “extremely dangerous for cybersecurity.” Under this holding, there is no legal recourse if a foreign government “hacks into your car and drives it off the road, targets you for a drone strike, or even sends a virus to your pacemaker, as long as the government planned the attack on foreign soil.” For further analysis of this decision, see Lawfare and Motherboard.

In 2013, Privacy International, Reporters Without Borders, Bahrain Watch, the Business Center for Human Rights, and the ECCHR filed a formal complaint with the UK National Contact Point for the OECD, as well as the equivalent German Contact Point, against Gamma and Trovicor. The UK Contact Point accepted the complaint for consideration against Gamma. In 2014, the UK Contact Point determined that Gamma was in violation of human rights guidelines. The German Contact Point refused to investigate the allegations and was only willing to continue with mediation in relation to Trovicor’s risk management.

Privacy International began investigating Gamma and the export of FinFisher/FinSpy spyware. After discovering that Gamma’s FinSpy was subject to the UK export control regime and that Gamma had only submitted a Control List Classification enquiry asking the government whether or not it needed an export license for the product in July 2012, Privacy International submitted a dossier of evidence against Gamma to HMRC and called for an investigation. HMRC is responsible for overseeing the enforcement of export regulations in the UK. HMRC refused to provide any details regarding any investigation into Gamma’s export practices, arguing that it was statutorily barred from doing so. In May 2013, Privacy International filed for judicial review of HMRC’s decision. In May 2014, the Administrative Court declared that HMRC acted unlawfully and “irrationally” in issuing blanket refusals into the status of any investigation into the potentially illegal export of FinFisher. The court quashed HMRC’s decision and ordered it to consider Privacy International’s request again.

In October 2014, Privacy International and the European Center for Constitutional and Human Rights submitted a criminal complaint calling for an investigation into Gamma in Munich, Germany. In December 2014, public prosecution authorities in Munich decided not to launch investigatory proceedings against Gamma’s employees.

The organizations argue that the Munich-based companies sold the FinSpy spyware to Turkey without an export license and that this assisted in the surveillance of opposition members and journalists by the Turkish government. Public prosecutors in Munich have reportedly opened an investigation. On October 14, 2020, DW reported that “German Customs Investigation Bureau (ZKA) searched 15 residential and business premises in Germany and abroad last week with connections to the Munich-based surveillance software firm FinFisher.”

In November 2017, the International Federation for Human Rights (FIDH) and the Ligue française des droits de l’Homme (LDH), with support from the Cairo Institute for Human Rights Studies (CIHRS), requested an investigation into the sale of surveillance equipment by this French company to Egypt and the potential role of this equipment in widespread oppression under the Al Sissi regime in Egypt. In December 2017, the Paris Prosecutor acknowledged the gravity of the allegations, giving Egyptian victims the opportunity to become civil parties to the case and testify in France as well as enable FIDH and LDH to become civil parties.

In October 2011, FIDH and LDH filed a complaint alleging the complicity of Amesys and its executive managers in acts of torture for having signed and executed a commercial agreement for the provision of surveillance technology to the Libyan regime in 2007. In May 2012, a formal criminal investigation was opened in France. After subsequent litigation over this decision to open an investigation, in January 2013, the Chamber of Criminal Investigation of the Court of Appeal upheld the initial order to open the investigation.

FIDH and LDH filed a criminal complaint before a Paris court urging for an investigation into the involvement of French companies supplying surveillance equipment to Bashar El-Assad’s Syrian government. The complaint named Qosmos, a French company, in particular alleging that it is complicit in human rights abuses, including torture, by the Syrian government by providing it with surveillance equipment. In April 2014, a full judicial investigation was brought against Qosmos by the Paris Court for complicity in torture. In April 2015, an investigative judge declared Qosmos an “assisted witness”.

Elliot Broidy, a top fundraiser for Donald Trump, filed a lawsuit against the state of Qatar and Washington lobbyist Nick Muzin as well as others blaming them for hacking his computers and leaking unflattering information to the media. In August 2018, the Qatari state and Muzin were dismissed from the suit.