Kurt Opsahl

NSO goes first. First question is about whether the State Department suggested immunity. They did not. Judges seem skeptical of applying foreign sovereign immunity for private actors. (NSO sells is tools to nation states)

NSO argues that it does not operate the tool used by the foreign states, just installs the tool and trains the foreign state, and provides ongoing support, and thus does not decide who to target.

Judge Nelson asks if they have non-state clients, NSO says all its clients are foreign states, says WhatsApp's evidence only shows a reseller in between NSO and foreign state.

WhatsApp argument begins, says NSO is trying to expand immunity for natural persons acting to represent states to corporations.

WhatsApp argues that foreign sovereigns must come forward to claim immunity, which they have not done here, notes NSO has not even identified their foreign clients.

Court asks if it makes a difference if NSO has only foreign sovereign clients, or has some private clients. WhatsApps says this weakens the immunity claims, as it moves away from the logic of protecting natural people acting as agents.

Court asks for summary of misconduct - was it during testing or use? WhatsApp says it is both. Pegasus product allegedly violated by testing, plus the attacks on the 1400 human rights activists via Pegasus.

WhatsApp argues that the State Department not suggesting immunity shows no established policy for this kind of immunity.

WhatsApp is heavily relying on its "natural persons" argument, says it would be implausible to apply common law immunity to a corp like NSO.

WhatsApp agrees that the Dogan case looked beyond the Restatement's summary of the common law factors, but says that none of those factors are present here.

The "Restatement" refers to the Restatement (Second) of Foreign Relations Law, which attempts to summarize the judge made law in foreign relations law.

NSO starts rebuttal, arguing that the District Court erred by saying that it could craft a remedy that does not place burdens on foreign states.

Court asks why not proceed to discovery, get facts on NSO's role. NSO says there was no injury in the Pegasus testing, only (alleged) injury from the use by foreign state customer against the human rights activists.

This matters because its harder for NSO to argue immunity as agent of foreign state for their own development of the Pegasus tool.

NSO argues that WhatsApp didn't ask for discovery properly or sufficiently, seems to be making a waiver argument.

NSO argues that the US Government uses technology like NSO's tool for national security, and makes a slippery slope argument against allowing suits against tool makers.

Court responds to note that the State Dept silence on immunity show no signal agreeing with this slippery slope argument. NSO points to a footnote, says it suggests the US gov might agree with them.

Court thanks the attorneys, and the matter is submitted.