An appeals court on Wednesday rejected a bid by the widow of murdered Washington Post journalist Jamal Khashoggi to revive a lawsuit against spyware maker NSO Group, whom she alleged played a role in her husband’s death.
The U.S. District Court for the Eastern District of Virginia had dismissed the suit from Hanan Elatr Khashoggi, who maintained that the company’s Pegasus spyware had been implanted on her phone and used to surveil her communications with her husband.
The ruling by the U.S. Court of Appeals for the Fourth Circuit upheld the lower court ruling.
At issue was “personal jurisdiction” in the case, or the power a court had to make a ruling about the party being sued. It’s been a difficult hurdle for lawsuits against spyware vendors.
But this month, a federal jury in California awarded nearly $168 million in damages to WhatsApp in a separate case against NSO Group. The appeals court drew a contrast between the two situations. In the WhatsApp case, the appeals court ruling observed, there was “express aiming” by NSO Group into California.
“It found that NSO targeted WhatsApp’s California-based servers for the purposes of transmitting malicious computer codes — the Pegasus spyware — through those servers to facilitate the sort of surveillance Pegasus offers to its clients,” the appeals court wrote. “It emphasized that NSO had ‘sought out and accessed [WhatsApp’s] servers,’ “reverse-engineered the WhatsApp app,’ and ‘developed a program that emulated legitimate WhatsApp network traffic’ to transmit the Pegasus Spyware over the company’s servers.”
That wasn’t the case in Virginia, according to the appeals court.
“NSO does not appear to have directed electronic activity into Virginia,” it wrote. “If there was any express aiming of conduct towards Virginia, it was at the direction of Saudi Arabia and the UAE, not NSO.”
Khashoggi told CyberScoop she was unhappy with the outcome but would still seek justice in whatever venue she could.
“Although I am disappointed by the ruling this does not negate the fact that the NSO group did indeed infiltrate my devices, spied on me and my husband Jamal, and tracked him down to his death,” she said. “I will continue to fight for justice whether it’s in the courtroom or on Capitol Hill.”
A spokesperson for NSO Group, Gil Lanier, told CyberScoop that “we are pleased with the court’s decision and happy that our position was affirmed once again by the court’s ruling.“
A ruling in a different suit against NSO Group, one brought by El Salvadoran journalists, is pending in yet another appeals court.
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