Rules regulating the sale of Israeli spyware Pegasus, allegedly used by operators to target phones of WhatsApp users for surveillance in several countries, are at the centre of a legal battle in Tel Aviv.
On November 7, a district court in the Israeli capital will hear arguments on why the country’s Ministry of Defence needs to cancel Pegasus-developer NSO Group’s export licence.
The central point being raised is why “despite the licensing of the software (Pegasus) regulated by Israel’s Defence Export Controls Agency (DECA) being under the same type of licensing requirements and export restrictions applicable to military weapons and national security systems” due oversight has not been exercised.
The legal action in Tel Aviv, brought by nearly 30 human rights activists, is supported by Amnesty International as part of a joint project with NYU School of Law’s Bernstein Institute for Human Rights and Global Justice Clinic. This centre specialises in questions of justice “for human rights defenders targeted with malicious software”.
Amnesty International has said its own activists were targeted by Pegasus in June 2018. In a lawsuit brought before a US federal court Tuesday, Facebook-owned WhatsApp alleged that the NSO Group targeted some 1,400 WhatsApp users with Pegasus.
On Thursday, The Indian Express reported that WhatsApp had confirmed that phones of human rights activists and journalists in India had been targeted for surveillance by operators using Pegasus. While declining to reveal the identities and “exact number” of those targeted for surveillance in India, a WhatsApp spokesperson said “it is not an insignificant number”.
The affidavit filed by Amnesty in support of the petitioners in the Tel Aviv court speaks of the role of the Israeli government in ensuring that NSO takes responsibility for the end-use of its software and stops selling it to governments to target rights activists and political opponents.
“Despite the foreseeable risk of violations of the human rights to privacy, freedom of opinion and expression of human rights defenders resulting from the sale to and use by certain governments of NSO Group’s technology, Israel is failing to prevent or restrict such sales. The Israeli government is therefore breaching its duty under international human rights law to protect against violations of rights guaranteed by the International Covenant on Civil and Political Rights,” it stated.
Amnesty International’s representatives said they are asking for “Israel’s Ministry of Defence to cancel NSO’s licence.”
On Friday, a Reuters report from Jerusalem said the Israeli government denied any involvement in the alleged cyber-hack by NSO Group.
Distancing Prime Minister Benjamin Netanyahu’s government from the alleged attempts to send malware to the mobile devices of a number of WhatsApp users, Israeli security cabinet minister Zeev Elkin said that if anyone had done anything “forbidden” they could expect to find themselves in court.
“NSO is a private player using capabilities that Israelis have, thousands of people are in the cyber field, but there is no Israeli government involvement here, everyone understands that, this is not about the State of Israel,” Elkin told 102.FM Tel Aviv Radio.
In the interview, Elkin also said: “It is true that when people do things that are forbidden — I have no way of determining whether they did indeed do anything forbidden — then the justice system here and in other countries will throw the book at them.”
The NSO Group has not so far revealed who is or who is not a client. Sources say contractual and legal constraints and its ‘Transparency Statement of Principles’ prevent it from divulging this. It has maintained that “the sole purpose of NSO is to provide technology to licensed government intelligence and law enforcement agencies to help them fight terrorism and serious crime. Our technology is not designed or licensed for use against human rights activists and journalists. It has helped to save thousands of lives over recent years.”
Responding to queries from The Indian Express on the legal case filed by WhatsApp in the US, NSO said: “In the strongest possible terms, we dispute today’s allegations and will vigorously fight them. The truth is that strongly encrypted platforms are often used by pedophile rings, drug kingpins and terrorists to shield their criminal activity. Without sophisticated technologies, the law enforcement agencies meant to keep us all safe face insurmountable hurdles. NSO’s technologies provide proportionate, lawful solutions to this issue.”
“We consider any other use of our products than to prevent serious crime and terrorism a misuse, which is contractually prohibited. We take action if we detect any misuse. This technology is rooted in the protection of human rights — including the right to life, security and bodily integrity – and that’s why we have sought alignment with the UN Guiding Principles on Business and Human Rights, to make sure our products are respecting all fundamental human rights,” it said.