Petition for Writ of Certiorari — NSO Group Technologies Limited, et al., Petitioners v. WhatsApp Inc., et al.

No. 21-______

In the

Supreme Court of the United States

________________

NSO GROUP TECHNOLOGIES LIMITED AND

Q CYBER TECHNOLOGIES LIMITED,

v.

Petitioners,

WHATSAPP INC. AND META PLATFORMS, INC.,

Respondents.

________________

On Petition for Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

Joseph N. Akrotirianakis

Aaron Craig

KING & SPALDING LLP

633 W. 5th Street

Suite 1600

Los Angeles, CA 90071

Jeffrey S. Bucholtz

Counsel of Record

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

jbucholtz@kslaw.com

Matthew V.H. Noller

KING & SPALDING LLP

50 California Street

Suite 3300

San Francisco, CA 94105

Counsel for Petitioners

April 6, 2022

QUESTION PRESENTED

Whether the Foreign Sovereign Immunities Act

entirely displaces common-law immunity for entities,

such that private entities that act as agents for foreign

governments may never under any circumstances

seek common-law immunity in U.S. courts.

ii

CORPORATE DISCLOSURE STATEMENT

NSO Group Technologies Limited’s parent

company is Q Cyber Technologies Limited, whose

parent company is OSY Technologies. No publicly held

company owns 10% or more of the stock of NSO Group

Technologies Limited or Q Cyber Technologies

Limited.

iii

RELATED PROCEEDINGS

WhatsApp Inc. v. NSO Grp. Techs. Ltd., 17 F.4th

930 (9th Cir. 2021)

WhatsApp Inc. v. NSO Grp. Techs. Ltd., 491 F.

Supp. 3d 584 (N.D. Cal. 2020)

WhatsApp Inc. v. NSO Grp. Techs. Ltd., 472 F.

Supp. 3d 649 (N.D. Cal. 2020)

iv

TABLE OF CONTENTS

Question Presented ..................................................... i

Corporate Disclosure Statement ................................ ii

Related Proceedings .................................................. iii

Table of Authorities ................................................... vi

Petition for Writ of Certiorari .................................... 1

Opinions Below ........................................................... 1

Jurisdiction ................................................................. 1

Statutory Provisions Involved.................................... 1

Statement ................................................................... 1

A. Legal background ......................................... 1

B. Factual background and procedural

history ........................................................... 7

Reasons for Granting the Petition ........................... 10

I.

The decision below creates a division of

authority among the courts of appeals over

whether private entities can seek commonlaw immunity..................................................... 11

II. The question presented is important and

warrants the Court’s review in this case. ......... 14

A. Whether private entities can seek

common-law immunity is important to

the United States’ and other nations’

ability to hire contractors to assist with

governmental activities. ............................. 14

B. The Court should address the question

presented in this case. ................................ 18

III. The decision below conflicts with Samantar. ... 19

v

IV. The Court should consider calling for the

views of the Solicitor General. .......................... 21

Conclusion................................................................. 23

APPENDIX

Appendix A

Opinion of the United States Court of

Appeals for the Ninth Circuit,

WhatsApp Inc. v. NSO Grp. Techs.

Ltd., No. 20-16408 (Nov. 8, 2021) ........ App-1

Appendix B

Order of the United States District

Court for the Northern District of

California, WhatsApp Inc. v. NSO

Grp. Techs. Ltd., No. 19-cv-07123

(July 16, 2020) .................................... App-20

Appendix C

Order of the United States Court of

Appeals for the Ninth Circuit

Denying Rehearing En Banc,

WhatsApp Inc. v. NSO Grp. Techs.

Ltd., No. 20-16408 (Jan. 6, 2022)....... App-85

Appendix D

Relevant Statutes

28 U.S.C. § 1603 .......................... App-86

28 U.S.C. § 1604 ........................... App-86

vi

TABLE OF AUTHORITIES

Cases

Al Shimari v. CACI Int’l, Inc.,

679 F.3d 205 (4th Cir. 2012).................................. 16

Alicog v. Kingdom of Saudi Arabia,

860 F. Supp. 379 (S.D. Tex. 1994),

aff’d, 79 F.3d 1145 (5th Cir. 1996) .......................... 6

Am. Bonded Warehouse Corp.

v. Compagnie Nationale Air France,

653 F. Supp. 861 (N.D. Ill. Feb. 17, 1987) .............. 5

Argentine Republic

v. Amerada Hess Shipping Corp.,

488 U.S. 428 (1989).................................................. 3

Belhas v. Ya’alon,

515 F.3d 1279 (D.C. Cir. 2008) ................................ 2

Broidy Cap. Mgmt. LLC v. Muzin,

12 F.4th 789 (D.C. Cir. 2021) .......................... 12, 13

Broidy Cap. Mgmt., LLC v. Qatar,

982 F.3d 582 (9th Cir. 2020),

cert. denied, 141 S. Ct. 2704 (2021) ....................... 16

Butters v. Vance Int’l, Inc.,

225 F.3d 462 (4th Cir. 2000).............................. 6, 12

Chuidian v. Philippine Nat’l Bank,

912 F.2d 1095 (9th Cir. 1990).................................. 5

Church of Scientology Case,

(1978) [Fed. Supreme Ct.]

65 ILR 193 (Ger.) ..................................................... 3

DeCanas v. Bica,

424 U.S. 351 (1976)................................................ 21

vii

Doğan v. Barak,

932 F.3d 888 (9th Cir. 2019).................................... 5

Filarsky v. Delia,

566 U.S. 377 (2012)................................................ 20

Greenspan v. Crosbie,

No. 74 Civ. 4734,

1976 WL 841 (S.D.N.Y. Nov. 23, 1976) ................... 2

Heaney v. Gov’t of Spain,

445 F.2d 501 (2d Cir. 1971) ..................................... 2

Herbage v. Meese,

747 F. Supp. 60 (D.D.C. 1990) ............................. 2, 5

In re Estate of Marcos,

25 F.3d 1467 (9th Cir. 1994).................................... 5

Ivey ex rel. Carolina Golf Dev. Co. v. Lynch,

No. 17cv439, 2018 WL 3764264

(M.D.N.C. Aug. 8, 2018) .................................... 6, 12

Jones v. Ministry of Interior,

[2006] UKHL 26 (U.K.) ............................................ 3

Kansas v. Garcia,

140 S. Ct. 791 (2020).............................................. 21

Lane v. Halliburton,

529 F.3d 548 (5th Cir. 2008).................................. 16

Lyders v. Lund,

32 F.2d 308 (N.D. Cal. 1929) ................................... 2

Malone v. White Motor Corp.,

435 U.S. 497 (1978)................................................ 21

Mangold v. Analytic Servs., Inc.,

77 F.3d 1442 (4th Cir. 1996).................................. 15

viii

Matar v. Dichter,

563 F.3d 9 (2d Cir. 2009) ......................................... 5

Mireskandari v. Mayne,

800 F. App’x 519 (9th Cir. 2020),

cert denied, 141 S. Ct. 840 (2020) ............................ 5

Mitchell v. Forsyth,

472 U.S. 511 (1985)................................................ 19

Moriah v. Bank of China Ltd.,

107 F. Supp. 3d 272 (S.D.N.Y. 2015) ............ 3, 6, 12

Persinger v. Islamic Republic of Iran,

729 F.2d 835 (D.C. Cir. 1984) ................................ 15

Republic of Argentina v. NML Cap., Ltd.,

573 U.S. 134 (2014)................................................ 13

Republic of Austria v. Altmann,

541 U.S. 677 (2004)................................................ 14

Rishikof v. Mortada,

70 F. Supp. 3d 8 (D.D.C. 2014) ............................ 3, 5

Saleh v. Titan Corp.,

580 F.3d 1 (D.C. Cir. 2009) .................................... 17

Samantar v. Yousuf,

560 U.S. 305 (2010)........................................ passim

Siderman de Blake

v. Republic of Argentina,

965 F.2d 699 (9th Cir. 1992).................................. 14

ix

Smith v. Ghana Commercial Bank, Ltd.,

No. 10-4655, 2012 WL 2930462

(D. Minn. June 18, 2012),

adopted, 2012 WL 2923543

(D. Minn. July 18, 2012),

aff’d, No. 12-2795 (8th Cir. Dec. 7, 2012)................ 5

Underhill v. Hernandez,

168 U.S. 250 (1897).................................................. 2

Underhill v. Hernandez,

65 F. 577 (2d Cir. 1895) ........................................... 2

Velasco v. Gov’t of Indonesia,

370 F.3d 392 (4th Cir. 2004).................................... 5

Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 (1983)................................................ 20

Waltier v. Thomson,

189 F. Supp. 319 (S.D.N.Y. 1960) ........................... 2

Yousuf v. Samantar,

699 F.3d 763 (4th Cir. 2012)...................... 3, 5, 6, 12

Statutes

18 U.S.C. § 1030 ......................................................... 8

28 U.S.C. § 1602 ......................................................... 3

28 U.S.C. § 1603 ......................................................... 4

Cal. Penal Code § 502 ................................................. 8

Other Authorities

Actions Against Foreigners,

1 Op. Att’y Gen. 81 (1797) ....................................... 2

x

Antonin Scalia

& Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............. 20

Brief for the United States as Amicus

Curiae, CACI Premier Tech., Inc. v. Al

Shimari, No. 19-648 (U.S. Aug. 26, 2020) ...... 18, 22

Brief for the United States as Amicus

Curiae, Carmichael v. Kellogg, Brown

& Root Serv., Inc., No. 09-683

(U.S. May 28, 2010), 2010 WL 2214879................ 17

Brief for the United States as Amicus

Curiae, Clearstream Banking S.A.

v. Peterson, Nos. 17-1529, 17-1534

(U.S. Dec. 9, 2019) ................................................. 15

Brief for the United States as Amicus

Curiae, KBR, Inc. v. Metzgar, No. 13-1241

(U.S. Dec. 16, 2014), 2014 WL 7185601 ................ 16

Brief for the United States as Amicus

Curiae, Mutond v. Lewis,

No. 19-185 (U.S. May 26, 2020)......................... 9, 15

Brief for the United States as Amicus

Curiae, Odhiambo v. Republic of Kenya,

No. 14-1206 (U.S. May 24, 2016),

2016 WL 2997336 .................................................. 15

Dov Lieber et al.,

Police Tracked a Terror Suspect—

Until His Phone Went Dark After a

Facebook Warning, Wall St. J.

(Jan. 2, 2020, 3:29 p.m.) .......................................... 8

xi

Glenn J. Voelz,

Contractors and Intelligence:

The Private Sector in the Intelligence

Community, 22 Int’l J. Intelligence &

CounterIntelligence 586 (2009) ............................. 16

Hazel Fox & Philippa Webb,

The Law of State Immunity (3d ed. 2013) ............ 12

Hazel Fox,

The Law of State Immunity (2d ed. 2008) .............. 3

Invitation for Solicitor General,

Dole Food Co. v. Patrickson,

No. 01-593 (U.S. Dec. 10, 2001) ............................. 22

Invitation for Solicitor General,

Federal Republic of Germany v. Philipp,

No. 19-351 (U.S. Jan. 21, 2020) ............................. 21

Invitation for Solicitor General,

Mutond v. Lewis,

No. 19-185 (U.S. Jan. 21, 2020) ............................. 21

Invitation for Solicitor General,

Powerex Corp. v. Reliant Energy Servs.,

Inc., No. 05-85 (U.S. Apr. 17, 2006) ...................... 22

Invitation for Solicitor General,

Rubin v. Islamic Republic of Iran,

No. 16-534 (U.S. Jan. 9, 2017)............................... 21

Invitation for Solicitor General,

Samantar v. Yousuf,

No. 12-1078 (U.S. June 24, 2013) .......................... 21

xii

Moshe Schwartz & Jennifer Church,

Cong. Research Serv., No. R43074,

Department of Defense’s Use of

Contractors to Support Military

Operations: Background, Analysis, and

Issues for Congress (2013)..................................... 16

Office of the Dir. of Nat’l Intelligence,

The U.S. Intelligence Community’s Five

Year Strategic Human Capital Plan

(2006) ...................................................................... 15

Statement of Interest of the United States

of America, Matar v. Dichter,

500 F. Supp. 2d 284 (S.D.N.Y. 2007)

(No. 05-cv-10270), ECF No. 36 ........................ 2, 6, 7

Suits Against Foreigners,

1 Op. Att’y Gen. 45 (1794) ....................................... 2

United Nations Convention on

Jurisdictional Immunities of

States and Their Property,

G.A. Res. 59/38 (Dec. 16, 2004) ............................... 7

PETITION FOR WRIT OF CERTIORARI

Petitioners NSO Group Technologies Limited and

Q Cyber Technologies Limited (collectively, NSO)

respectfully petition for a writ of certiorari to review

the judgment of the Ninth Circuit.

OPINIONS BELOW

The Ninth Circuit’s decision (App.1-19) appears at

17 F.4th 930. The Ninth Circuit’s order denying

rehearing en banc (App.85) is unpublished. The

district court’s decision (App.20-84) appears at 472 F.

Supp. 3d 649.

JURISDICTION

The Ninth Circuit issued its opinion on November

8, 2021 and denied rehearing on January 6, 2022. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in

the Appendix. App.86.

STATEMENT

A. Legal background

1. For more than 200 years, U.S. law has

conferred immunity on foreign states and their agents.

See Samantar v. Yousuf, 560 U.S. 305, 311-12, 321

(2010). That immunity “developed as a matter of

common law.” Id. at 311.

One form of common-law immunity protected

foreign states, and a separate form protected foreign

officials and other agents acting on the state’s behalf.

See id. at 320-22. The U.S. Attorney General

2

recognized the second form, known as “conduct-based”

immunity, as early as 1797. Statement of Interest of

the United States of America at 6, Matar v. Dichter,

500 F. Supp. 2d 284 (S.D.N.Y. 2007) (No. 05-cv-10270),

ECF No. 36 (Matar Statement); see Suits Against

Foreigners, 1 Op. Att’y Gen. 45, 46 (1794); Actions

Against Foreigners, 1 Op. Att’y Gen. 81, 81 (1797).

Following the Attorney General’s opinion, this

Court and others endorsed conduct-based immunity.

See Matar Statement at 6-7. In Underhill v.

Hernandez, 168 U.S. 250, 252 (1897), for example, this

Court held that foreign officials are immune “for acts

done within their own states, in the exercise of

governmental authority, whether as civil officers or as

military commanders.” The basis for this immunity is

that “the acts of the official representatives of the state

are those of the state itself, when exercised within the

scope of their delegated powers.” Underhill v.

Hernandez, 65 F. 577, 579 (2d Cir. 1895), aff’d, 168

U.S. 250; accord Greenspan v. Crosbie, No. 74 Civ.

4734, 1976 WL 841, at *1-2 (S.D.N.Y. Nov. 23, 1976);

Waltier v. Thomson, 189 F. Supp. 319, 320-21

(S.D.N.Y. 1960); Lyders v. Lund, 32 F.2d 308, 309

(N.D. Cal. 1929).

Conduct-based immunity extended beyond

foreign officials to “agent[s]” who “acted on behalf of

the state.” Matar Statement at 8, 10; e.g., Heaney v.

Gov’t of Spain, 445 F.2d 501, 504 (2d Cir. 1971);

Belhas v. Ya’alon, 515 F.3d 1279, 1285 (D.C. Cir.

2008). Because a “government does not act but

through its agents,” Herbage v. Meese, 747 F. Supp. 60,

66 (D.D.C. 1990), it was the agent’s “act itself and

whether the act was performed on behalf of the foreign

3

state . . . that [was] the focus of the courts’ holdings,”

Rishikof v. Mortada, 70 F. Supp. 3d 8, 13 (D.D.C.

2014). In other words, under the common law, any act

performed “as an act of the State enjoys the immunity

which the State enjoys,” whether or not the agent is a

government official. Hazel Fox, The Law of State

Immunity 455 (2d ed. 2008).

“‘[C]ustomary international law’” likewise grants

immunity to “agent[s] for the government.” Moriah v.

Bank of China Ltd., 107 F. Supp. 3d 272, 277 (S.D.N.Y.

2015) (quoting Yousuf v. Samantar, 699 F.3d 763, 774

(4th Cir. 2012)); see Jones v. Ministry of Interior,

[2006] UKHL 26 [10] (U.K.) (“The foreign state’s right

to immunity cannot be circumvented by suing its

servants or agents.”). That is true even when the agent

is a private actor. Church of Scientology Case, (1978)

[Fed. Supreme Ct.] 65 ILR 193, 197-98 (Ger.). As long

as the agent’s challenged acts are related “to the

official activities of the agency concerned,” they “must

be placed within the ambit of State conduct.” Id. at

198.

3. In 1976, Congress passed the Foreign

Sovereign Immunities Act to codify the common-law

rules governing “claims of foreign states to immunity.”

Samantar, 560 U.S. at 313 (quoting 28 U.S.C. § 1602).

The FSIA, “if it applies, is the ‘sole basis for obtaining

jurisdiction over a foreign state in federal court.’” Id.

at 314 (quoting Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428, 439 (1989)). The FSIA

thus supersedes the common law for “foreign state[s],”

but not for defendants that are not “foreign state[s] as

the Act defines that term.” Id. at 325.

4

The FSIA defines “foreign state” as the state

itself, along with its “political subdivisions, agencies,

and instrumentalities.” Id. at 314; see 28 U.S.C.

§ 1603(a)-(b). And the Act “specifically define[s]

‘agency or instrumentality’” to cover only an

entity . . . (1) which is a separate legal person,

corporate or otherwise, and (2) which is an

organ of a foreign state or political

subdivision thereof, or a majority of whose

shares or other ownership interest is owned

by a foreign state or political subdivision

thereof, and (3) which is neither a citizen of a

State of the United States . . . nor created

under the laws of any third country.

Samantar, 560 U.S. at 314-15 (quoting 28 U.S.C.

§ 1603(b)) (internal quotation marks omitted).

Those detailed definitions limit the cases to which

the FSIA applies. Id. at 313-15. In Samantar, for

example, this Court affirmed the Fourth Circuit’s

holding “that the FSIA does not apply to individual

foreign government agents.” Id. at 310. The FSIA’s

definition of “foreign state,” the Court held, does not

include foreign officials or agents. Id. at 314-16. And

“Congress did not mean to cover other types of

defendants never mentioned in the text.” Id. at 319. So

when a defendant is not “a foreign state as the Act

defines that term,” the FSIA does not apply. Id. at 325.

But that does not mean the FSIA forbids foreign

officials and agents from seeking immunity under the

common law. The common law historically protected

“official[s] or agent[s] of the state” in different

situations and on different terms than it protected

5

foreign states. Id. at 321. By “codify[ing] state

immunity” in the FSIA, therefore, Congress neither

“codif[ied]” nor “supersede[d]” the distinct commonlaw immunity that applies to foreign officials and

agents. Id. at 321-22. Claims against such agents, who

are not “foreign state[s] as the Act defines that term,”

are “properly governed by the common law.” Id. at 325.

4. After the FSIA’s enactment, therefore,

immunity for foreign agents remains a matter of

common law. Id. at 321, 324. Courts after 1976

continued to recognize conduct-based immunity for

foreign officials and agents. E.g., Mireskandari v.

Mayne, 800 F. App’x 519, 519 (9th Cir. 2020), cert

denied, 141 S. Ct. 840 (2020); Doğan v. Barak, 932

F.3d 888, 893-94 (9th Cir. 2019); Yousuf, 699 F.3d at

774-75; Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009);

Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398-99 (4th

Cir. 2004); In re Estate of Marcos, 25 F.3d 1467, 1472

(9th Cir. 1994); Chuidian v. Philippine Nat’l Bank,

912 F.2d 1095, 1106 (9th Cir. 1990); Rishikof, 70 F.

Supp. 3d at 13; Smith v. Ghana Commercial Bank,

Ltd., No. 10-4655, 2012 WL 2930462, at *10 (D. Minn.

June 18, 2012), adopted, 2012 WL 2923543 (D. Minn.

July 18, 2012), aff’d, No. 12-2795 (8th Cir. Dec. 7,

2012); Herbage, 747 F. Supp. at 66; cf. Am. Bonded

Warehouse Corp. v. Compagnie Nationale Air France,

653 F. Supp. 861, 863-64 (N.D. Ill. Feb. 17, 1987)

(holding that defendants “sued in their respective

capacities as employees of Air France” would be

immune for official acts).

The post-1976 case law has also recognized that

private agents of a foreign state enjoy conduct-based

immunity when acting in their capacity as foreign

6

agents. For example, the Fourth Circuit held in

Butters v. Vance International, Inc., 225 F.3d 462 (4th

Cir. 2000), that a private security firm was immune

for employment decisions it made while providing

security services to Saudi Arabia. Id. at 466. Butters

relied in part on Alicog v. Kingdom of Saudi Arabia,

where the Fifth Circuit affirmed a decision holding

that private agents of a Saudi prince were immune for

actions they took at the prince’s direction. 860 F. Supp.

379, 384-85 (S.D. Tex. 1994), aff’d, 79 F.3d 1145 (5th

Cir. 1996) (table).

Other courts have reached the same conclusion.

In Moriah, the court found a private Israeli citizen

immune for actions he took “at the behest of the Israeli

government” because “conduct-based immunity . . .

extends beyond current and former government

officials to individuals acting as an agent for the

government.” 107 F. Supp. 3d at 277-78 (cleaned up).

Similarly, the court in Ivey ex rel. Carolina Golf

Development Co. v. Lynch, No. 17cv439, 2018 WL

3764264 (M.D.N.C. Aug. 8, 2018), held that a private

attorney enjoyed common-law immunity for actions he

took as the agent of a German official. Id. at *6-7.

Although some post-1976 decisions erroneously

treated the FSIA rather than the common law as the

source of conduct-based immunity, their reasoning is

still “instructive for post-Samantar questions of

common law immunity.” Yousuf, 699 F.3d at 774. The

United States has approved “the rationale for the

immunity recognized in these cases” despite their

misplaced reliance on the FSIA. Matar Statement at

13-14.

7

The international community has also codified

this consensus about the scope of conduct-based

immunity in the United Nations Convention on

Jurisdictional Immunities of States and Their

Property, G.A. Res. 59/38 (Dec. 16, 2004),

https://bit.ly/3oyBEQ9. The Convention grants

immunity to “representatives of the State acting in

that capacity.” Id. art. 2, ¶ 1(b)(iv). That includes

“entities” that “are entitled to perform and are

actually performing acts in the exercise of sovereign

authority of the State.” Id. art. 2, ¶ 1(b)(iii). Although

the United States has not ratified the Convention, it

views the Convention’s treatment of conduct-based

immunity “as consistent with customary international

law.” Matar Statement at 21.

B. Factual background and procedural

history

1. NSO is an Israeli company that designs highly

regulated technology for use by governments to

investigate terrorism, child exploitation, and other

serious crimes. C.A. ER 52-53 ¶¶ 5-9, 63 ¶ 5. “One of

NSO’s products—a program named Pegasus—

‘enables law enforcement and intelligence agencies to

remotely and covertly extract valuable intelligence

from virtually any mobile device.’” App.3. Pegasus is

marketed only to and used only by governments and

government agencies. C.A. ER 53 ¶ 9, 96. NSO

licenses Pegasus to its government customers, the

licenses are approved by the Israeli Ministry of

Defense, and NSO’s customers choose whether and

how to use Pegasus. C.A. ER 54-55 ¶ 14.

Respondent WhatsApp, owned by Respondent

Meta Platforms, is a popular communication service.

8

C.A. ER 65 ¶ 17. In 2019, WhatsApp was used by

approximately 1.5 billion people in 180 countries. Id.

Some WhatsApp users are violent criminals and

terrorists who exploit the software’s encryption to

avoid detection. Technology like Pegasus enables

governments to prevent terrorism and violent crime

through investigations that might otherwise be

frustrated by the WhatsApp software’s encryption.

2. In May 2019, WhatsApp notified 1,400 users

that their mobile devices may have been accessed by

government actors using Pegasus. C.A. ER 70 ¶ 42, 71

¶ 44. WhatsApp’s notification “killed” a significant

investigation by European governments into an

Islamic State terrorist who had been using WhatsApp

to plan an attack. Dov Lieber et al., Police Tracked a

Terror Suspect—Until His Phone Went Dark After a

Facebook Warning, Wall St. J. (Jan. 2, 2020, 3:29

p.m.), https://on.wsj.com/38uXk5s.

WhatsApp then filed this suit, claiming its servers

were used in the process of installing Pegasus on the

devices of the 1,400 users. App.4. WhatsApp asserted

claims under the federal Computer Fraud and Abuse

Act, 18 U.S.C. § 1030, the California Comprehensive

Computer Data Access and Fraud Act, Cal. Penal

Code § 502, and state contract and tort law. App.4.

NSO moved to dismiss. As relevant here, it

challenged the district court’s subject-matter

jurisdiction on the ground that it was immune from

this suit as an agent of foreign governments. App.4-5.

NSO supported its “factual” challenge to jurisdiction

with a declaration from its CEO, who explained NSO’s

conduct on behalf of foreign governments. C.A. ER 5156. WhatsApp did not submit any contrary evidence,

9

so the district court found NSO to be an agent of

foreign governments. App.34-35.

The district court nonetheless rejected NSO’s

immunity defense. Based on NSO’s undisputed

evidence, the district court found that NSO was an

agent of foreign governments that acted entirely

within its “official capacity.” App.33-35. But the court

held that NSO did not qualify for conduct-based

immunity because a judgment against NSO would not

bind any foreign government. App.36. (The United

States has rejected this restrictive interpretation of

conduct-based immunity. Brief for the United States

as Amicus Curiae at 8-16, Mutond v. Lewis, No. 19-185

(U.S. May 26, 2020) (Mutond Amicus Br.).)

3. The Ninth Circuit affirmed on an alternative

ground. App.2-3. The court did not “analyze whether

NSO is entitled to immunity under the common law.”

App.18. Instead, it held that the FSIA entirely

“displaced common-law sovereign immunity doctrine

as it relates to entities.” App.3. As a result, the court

concluded, the FSIA “categorically forecloses

extending immunity to any entity that falls outside

the FSIA’s broad definition of ‘foreign state.’” App.2-3.

Under the Ninth Circuit’s decision, therefore, an

entity can receive immunity only if it qualifies as a

“foreign state” under the FSIA. App.12. “If an entity

does not fall within the Act’s definition of ‘foreign

state,’ it cannot claim foreign sovereign immunity.

Period.” Id. Because NSO is not and has never claimed

to be a “foreign state” under the FSIA, the Ninth

Circuit held it could not receive immunity. App.17-19.

10

The Ninth Circuit denied NSO’s motion for

rehearing and rehearing en banc. App.85. The court

stayed its mandate pending the filing of this petition.

C.A. Dkt. 90.

REASONS FOR GRANTING THE PETITION

This petition offers the Court an excellent vehicle

to decide an important question that has divided the

federal courts of appeals: whether private entities may

ever seek common-law sovereign immunity in U.S.

courts. The Ninth Circuit gave a drastic, categorical

answer to that question. It held that the FSIA forbids

private entities from ever seeking common-law

conduct-based immunity. That sweeping holding has

never been endorsed by any other court. To the

contrary, the Fourth and D.C. Circuits have

recognized that, notwithstanding the FSIA, entities

may be eligible for conduct-based immunity.

This dispute has significant implications for the

United States’ foreign relations. Numerous countries,

including the United States, frequently rely on private

contractors to perform or assist with core

governmental activities. If such contractors can never

seek immunity in U.S. courts, then the floodgates will

open to foreign suits against U.S. contractors designed

to interfere with the United States’ most sensitive

intelligence and military operations. In light of those

consequences, the question whether entities can seek

common-law immunity should not have different

answers in different circuits. This Court should

resolve that question for the entire nation.

This Court’s decision in Samantar provides the

right answer: the common law governs immunity

11

claims by private entities. Samantar held that claims

that are “not . . . against a foreign state as the [FSIA]

defines that term” are “governed by the common law.”

560 U.S. at 325. This Court expressly stated that

“[e]ven if a suit is not governed by the Act, it may still

be barred by foreign sovereign immunity under the

common law.” Id. at 324. But the Ninth Circuit

directly and erroneously rejected that principle by

holding that the FSIA entirely displaces the common

law for entities that are not “foreign state[s] as the Act

defines that term.” Id. at 325. To clarify and enforce

its decision in Samantar, this Court should reverse.

As an alternative to granting this petition

outright, the Court should call for the views of the

Solicitor General. This Court frequently requests the

government’s views on petitions raising questions of

immunity under the FSIA and the common law. The

same approach would be appropriate here.

I.

The decision below creates a division of

authority among the courts of appeals over

whether private entities can seek commonlaw immunity.

The question whether private entities may seek

common-law conduct-based immunity has divided the

federal courts of appeals. The Fourth Circuit has

granted conduct-based immunity to a private entity,

and the D.C. Circuit has allowed private entities to

seek conduct-based immunity. The decision below, in

contrast, held that the FSIA categorically forbids any

private entity from ever seeking conduct-based

immunity in any circumstances.

12

The Fourth Circuit held in Butters v. Vance

International, Inc., 225 F.3d at 466, that a private

entity was immune from claims arising out of its

provision of security services to Saudi Arabia. In

reaching that conclusion, the court applied the test for

conduct-based immunity, holding that private agents

are immune “when following the commands of a

foreign sovereign employer.” Id. And it held that

private entities could receive that immunity because

“courts define the scope of sovereign immunity by the

nature of the function being performed—not by the

office or the position of the particular employee

involved.” Id. Although the court arguably located the

source of immunity in the FSIA rather than the

common law, its holding remains “instructive for . . .

questions of common law immunity.” Yousuf, 699 F.3d

at 774; see Ivey, 2018 WL 3764264, at *2, 6-7

(interpreting Butters as granting conduct-based

immunity); Moriah, 107 F. Supp. 3d at 277 & n.34

(same); Hazel Fox & Philippa Webb, The Law of State

Immunity 444, 453 (3d ed. 2013) (same).

More recently, the D.C. Circuit treated conductbased immunity as available to private entities in

some circumstances. Broidy Cap. Mgmt. LLC v.

Muzin, 12 F.4th 789, 802 (D.C. Cir. 2021). In that case,

private entities sought immunity for work they

allegedly performed for Qatar. Id. at 793-94. The D.C.

Circuit rejected immunity for factual reasons, holding

that the entities had not introduced the necessary

evidence to show that they “act[ed] as [Qatar’s]

13

agents.” Id. at 800. 1 But the court found that private

entities can seek common-law immunity. It explained

that, after Samantar, claims of immunity by “private

entities or individuals” must “rise or fall not under the

FSIA, but the residual law and practice that the FSIA

did not displace.” Id. at 802.

The Ninth Circuit’s decision that the FSIA

categorically bars private entities from seeking

common-law immunity openly conflicts with both

Butters and Broidy. The Ninth Circuit rejected

Butters, finding the Fourth Circuit’s application of

immunity to a private entity inconsistent with this

Court’s “instruct[ion] that ‘any sort of immunity

defense made by a foreign sovereign in an American

court must stand on the Act’s text. Or it must fall.’”

App.17 n.6 (quoting Republic of Argentina v. NML

Cap., Ltd., 573 U.S. 134, 141-42 (2014)). And while

Broidy recognized that “the FSIA did not displace”

common-law immunity for “private entities,” 12 F.4th

at 802, the Ninth Circuit held the exact opposite,

App.3. Indeed, the Ninth Circuit criticized Broidy for

“presum[ing] . . . that the common law applied to

‘private entities or individuals.’” App.15 n.5 (quoting

Broidy, 12 F.4th at 802).

There is thus a division of authority over whether

entities can seek common-law immunity. In the

Fourth and D.C. Circuits, they can. In the Ninth

Circuit, they categorically cannot. This Court should

grant review to resolve that split.

1 The district court here, in contrast, found that NSO acted in

its “official capacity” as an agent of foreign governments. App.35.

14

II. The question presented is important and

warrants the Court’s review in this case.

Whether private entities that serve as

government agents may seek common-law immunity

is an important question with significant foreignpolicy implications. Many nations, including the

United States, rely on private contractors to conduct

or support core governmental activities. If such

contractors can never seek immunity, as the Ninth

Circuit held, then the United States and other

countries may soon find their military and intelligence

operations disrupted by lawsuits against their agents.

In light of those consequences, the question

presented is too important for its answer to vary based

on the circuit in which a plaintiff chooses to file suit.

This Court should provide a uniform answer for the

entire nation. And this case—which presents a purely

legal question that depends on no disputed facts—

presents an excellent vehicle for the Court to do so.

A.

Whether private entities can seek

common-law immunity is important to

the United States’ and other nations’

ability to hire contractors to assist with

governmental activities.

Common-law immunity is “a matter of comity,”

Republic of Austria v. Altmann, 541 U.S. 677, 688

(2004), “rooted in . . . the notion of sovereignty and the

notion of the equality of sovereigns,” Siderman de

Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th

Cir. 1992) (cleaned up). For that reason, “some foreign

states base their sovereign immunity decisions on

15

reciprocity.” Persinger v. Islamic Republic of Iran, 729

F.2d 835, 841 (D.C. Cir. 1984).

In practice, that means that if U.S. courts exercise

jurisdiction over foreign actors, then foreign courts

will reciprocate by exercising jurisdiction over U.S.

actors in similar circumstances. The United States

has repeatedly alerted the Court to this risk. E.g.,

Brief for the United States as Amicus Curiae at 20,

Clearstream Banking S.A. v. Peterson, Nos. 17-1529,

17-1534 (U.S. Dec. 9, 2019); Brief for the United States

as Amicus Curiae at 22-23, Odhiambo v. Republic of

Kenya, No. 14-1206 (U.S. May 24, 2016), 2016 WL

2997336. It has done so specifically in the context of

conduct-based immunity, warning that “personal

damages actions against foreign officials” in U.S.

courts could “trigger concerns about the treatment of

United States officials abroad, and interfere with the

Executive’s conduct of foreign affairs.” Mutond

Amicus Br. 16.

This concern extends to the government’s private

entity agents. Governments have an “unquestioned

need to delegate governmental functions. The

government cannot perform all necessary and proper

services itself and must therefore contract out some

services for performance by the private sector.”

Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1448

(4th Cir. 1996). The United States in particular often

has “no choice but to use contractors for work that may

be borderline ‘inherently governmental.’” Office of the

Dir. of Nat’l Intelligence, The U.S. Intelligence

Community’s Five Year Strategic Human Capital

Plan 6 (2006).

16

That work includes the United States’ most

sensitive military and intelligence operations. See Al

Shimari v. CACI Int’l, Inc., 679 F.3d 205, 240-44 (4th

Cir. 2012) (Wilkinson, J., dissenting). “[T]he military

finds the use of civilian contractors in support roles to

be an essential component of a successful war-time

mission.” Lane v. Halliburton, 529 F.3d 548, 554 (5th

Cir. 2008); accord Brief for the United States as

Amicus Curiae at 16, KBR, Inc. v. Metzgar, No. 131241 (U.S. Dec. 16, 2014), 2014 WL 7185601 (touting

the “military’s reliance on the expert judgment of

contractors”). Contractor personnel accounted for

more than half of the total U.S. force in Iraq and

Afghanistan. Moshe Schwartz & Jennifer Church,

Cong. Research Serv., No. R43074, Department of

Defense’s Use of Contractors to Support Military

Operations: Background, Analysis, and Issues for

Congress 1 (2013), https://bit.ly/3K2O37g. And some

70,000 private contractors support U.S. intelligence

operations, with a quarter of those contractors

“directly involved in core intelligence mission

functions.” Glenn J. Voelz, Contractors and

Intelligence: The Private Sector in the Intelligence

Community,

22

Int’l

J.

Intelligence

&

CounterIntelligence 586, 587 (2009). That includes

“collect[ing] foreign intelligence” through surveillance

technology, which is “the sort of peculiarly sovereign

conduct that all national governments (including our

own) assert the distinctive power to perform.” Broidy

Cap. Mgmt., LLC v. Qatar, 982 F.3d 582, 595 (9th Cir.

2020), cert. denied, 141 S. Ct. 2704 (2021).

The decision below threatens the United States’

and other countries’ ability to rely on private

contractors. If U.S. courts categorically deny

17

immunity to foreign government contractors, then

foreign states can entertain reciprocal lawsuits

against the United States’ many contractors. Such

lawsuits would be “indirect challenges to the actions

of the [United States],” Saleh v. Titan Corp., 580 F.3d

1, 7 (D.C. Cir. 2009), seeking to control how the United

States conducts distinctly governmental operations.

That is, in fact, one of Respondents’ avowed goals

in this lawsuit: to discourage governments, expressly

including the United States, from using technology

like NSO’s—and, even more broadly, from ever using

private contractors to support military and

intelligence operations. C.A.Resp.Br. 48-50. Below,

Respondents urged the court to deny NSO immunity

in order to “promote transparency in international

affairs” and curb “the troubling trend of governments

unduly relying on private companies.” Id. at 49-51.

They argued that “private actors . . . should not share”

state power, and that a government should not be

allowed to “launder[]” its sovereign activities “through

a private entity.” Id. And they cited the United States’

use of private contractors as an example of the

governmental conduct they hope their lawsuit will

discourage. Id. at 48 n.15.

But governments, not Respondents, get to decide

when and for what purposes they will use private

contractors, and the United States has “significant

interests in ensuring” that such “judgments are not

subject to judicial second-guessing.” Brief for the

United States as Amicus Curiae at 9, Carmichael v.

Kellogg, Brown & Root Serv., Inc., No. 09-683 (U.S.

May 28, 2010), 2010 WL 2214879. That is why the

United States has left open the possibility that its

18

entity “contractor[s] should be sheltered by . . .

sovereign immunity in an adjudication in a foreign or

international court.” Brief for the United States as

Amicus Curiae at 9 n.1, CACI Premier Tech., Inc. v. Al

Shimari, No. 19-648 (U.S. Aug. 26, 2020) (Al Shimari

Amicus Br.).

The decision below eliminates that important

argument. In so doing, it opens the door to lawsuits in

U.S. courts designed to interfere with the sensitive

military and intelligence operations of the United

States’ allies. And, reciprocally, it exposes the United

States to the risk of similar suits being filed in foreign

courts. That startling result justifies this Court’s

review.

B. The Court should address the question

presented in this case.

This case is an excellent vehicle to decide the

important question presented. The Ninth Circuit

decided this case on a pure question of statutory

interpretation. App.2-3, 18-19. That question was

argued in the parties’ briefs and conclusively resolved

by the decision below. No further factual development

or proceedings in the district court could affect the

Ninth Circuit’s categorical holding that the FSIA

forbids every non-governmental entity from seeking

common-law immunity.

For those reasons, this case’s interlocutory

posture presents no obstacle to review. To the

contrary, immediate review is essential because NSO

claims “an immunity from suit,” App.6, which will be

“effectively lost” if NSO has to go through a trial before

seeking review, Mitchell v. Forsyth, 472 U.S. 511, 526

19

(1985). The Ninth Circuit recognized as much when

exercising interlocutory jurisdiction over NSO’s

appeal. App.5-6. This Court granted review in an

identical posture in Samantar, and it should do the

same here. 560 U.S. at 310-11.

III. The decision below conflicts with Samantar.

For the reasons set forth above, this Court should

grant review to resolve the division of authority on this

important issue, irrespective of the merits of the

decision below. Moreover, the decision is wrong, as

this Court’s decision in Samantar reveals.

Samantar held that when a plaintiff sues a

defendant that is not “a foreign state as the [FSIA]

defines that term,” the FSIA does not apply. 560 U.S.

at 325. Instead, those suits are “governed by the

common law.” Id. The Ninth Circuit, in contrast, held

that the FSIA “displaced common-law sovereign

immunity” for entities that “do[] not fall within the

Act’s definition of ‘foreign state.’” App.3, 12. In the

Ninth Circuit’s opinion, the FSIA sub silentio

outlawed immunity for entities that serve as foreign

government agents.

On its face, that holding conflicts with Samantar’s

conclusion that the FSIA does not “supersede” the

common-law with respect to defendants other than

“foreign states.” 560 U.S. at 320-23. Private entities

are not “foreign state[s] as the [FSIA] defines that

term.” Id. at 325. Under Samantar, therefore, the

FSIA has nothing to say about whether such entities

may receive conduct-based immunity. That depends

entirely on the common law, which Congress did not

“intend[] the FSIA to supersede.” Id. at 320.

20

The Ninth Circuit’s contrary decision flouts the

fundamental

“assumption

that

common-law

principles of immunity were incorporated into our

judicial system and that they should not be abrogated

absent clear legislative intent to do so.” Filarsky v.

Delia, 566 U.S. 377, 389 (2012) (cleaned up); see

Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 318 (2012) (“[S]tatutes

will not be interpreted as changing the common law

unless they effect the change with clarity.”). As

Samantar recognized, nothing in the FSIA

“indicate[s]” that Congress intended to “supersede”

the common “law of foreign official immunity.” 560

U.S. at 325. The FSIA “supersede[s] the common-law

regime” only “for claims against foreign states.” Id.

(emphasis added).

For that reason, the Ninth Circuit’s focus on the

FSIA’s “‘comprehensive’ regime” misses the point.

App.12. The FSIA is comprehensive only “if it applies.”

Samantar, 560 U.S. at 314. And it “applies” only to

“‘foreign state[s],’” id., which it defines to exclude

private entities. So while the FSIA no doubt

“create[ed] a ‘comprehensive set of legal standards

governing claims of immunity . . . against a foreign

state or its political subdivisions, agencies or

instrumentalities,’” App.14 (quoting Verlinden B.V. v.

Cent. Bank of Nigeria, 461 U.S. 480, 488 (1983)), that

in no way suggests that the FSIA overrides the

common law with respect to defendants that are not

“foreign state[s],” Samantar, 560 U.S. at 325.

This Court has made a similar point in the context

of field preemption. Because “[e]very Act of Congress

occupies some field,” the Court “must know the

21

boundaries of that field before” it can decide whether

a statute displaces state law. DeCanas v. Bica, 424

U.S. 351, 360 n.8 (1976); see Kansas v. Garcia, 140 S.

Ct. 791, 804 (2020) (the Court “must first identify the

field” covered by a federal statute). “To discover the

boundaries,” the Court “look[s] to the federal statute

itself.” DeCanas, 424 U.S. at 360 n.8. Even when a

statute is “comprehensive” within its field, it “does not

apply” to matters outside of its scope. Malone v. White

Motor Corp., 435 U.S. 497, 499 n.1 (1978).

That principle applies equally here. The FSIA

“codif[ied] state immunity,” and nothing more.

Samantar, 560 U.S. at 322 (emphasis added). Because

NSO is not a “foreign state” under the FSIA,

Respondents’ claims against NSO are “governed by

the common law.” Id. at 325. This Court should grant

review and reverse the Ninth Circuit’s decision

holding otherwise.

IV. The Court should consider calling for the

views of the Solicitor General.

If the Court does not grant review outright, it

should call for the views of the Solicitor General.

This Court treats the government’s views as

relevant to foreign sovereign immunity. Id. at 312,

319. The Court thus routinely calls for the Solicitor

General’s views on petitions raising questions of

immunity, including in Samantar itself. Samantar v.

Yousuf, No. 12-1078 (U.S. June 24, 2013); see also, e.g.,

Mutond, No. 19-185 (U.S. Jan. 21, 2020); Federal

Republic of Germany v. Philipp, No. 19-351 (U.S. Jan.

21, 2020); Rubin v. Islamic Republic of Iran, No. 16534 (U.S. Jan. 9, 2017); Powerex Corp. v. Reliant

22

Energy Servs., Inc., No. 05-85 (U.S. Apr. 17, 2006);

Dole Food Co. v. Patrickson, No. 01-593 (U.S. Dec. 10,

2001).

The same approach would be appropriate here.

Respondents have speculated that the government

would oppose NSO’s immunity claim. E.g., C.A.

Resp.Br. 52; C.A. Dkt. 86 at 18; C.A. Dkt. 89 at 20-21.

But the government has not yet had an opportunity to

speak for itself on the legal issue. It has not given any

opinion on the question presented, in this case or any

other. As detailed above, however, it has expressed

concerns about decisions that could expose its agents

to reciprocal lawsuits abroad—which is precisely what

the decision below portends. And the government has

reserved the question whether private “contractor[s]

should be sheltered by . . . sovereign immunity.”

Al Shimari Amicus Br. 9 n.1.

The division of authority on this important federal

question with foreign-policy implications is reason

enough to grant review. If, however, the Court is

uncertain as to the need for review, the views of the

Solicitor General could assist the Court’s

consideration of this petition.

23

CONCLUSION

This Court should grant the petition for certiorari.

Respectfully submitted,

Joseph N. Akrotirianakis

Aaron Craig

KING & SPALDING LLP

633 W. 5th Street

Suite 1600

Los Angeles, CA 90071

(213) 443-4355

Jeffrey S. Bucholtz

Counsel of Record

KING & SPALDING LLP

1700 Pennsylvania Ave. NW

Washington, DC 20006

(202) 737-0500

jbucholtz@kslaw.com

Matthew V.H. Noller

KING & SPALDING LLP

50 California Street

Suite 3300

San Francisco, CA 94105

(415) 318-1200

Counsel for Petitioners

April 6, 2022