VOL 49 NO 4 7
Published in Human Rights, Volume 49, Number 4, 2024. © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in
any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
ADOBE STOCK
Commerc ial spy ware is a
dictator’s dream come true.
Spyware can g ive attacke rs
total access to a device’s
contents—text messages, photos, contacts,
emails, applicat ions, and so forth—and can
enable remote activ ation of its microphone
and camera. Spyware thus tu rns devices
that the Supreme Court ha s described as
“a pervasive and insis tent part of daily life”
into pervasive sur veillance tools.
Repressive regimes have used spy ware
to surveil and i ntimidate dissidents, ac-
tivi sts, journalists, a nd political oppos ition
gur es aroun d the world, violating a host
of human rights in t he process. Seek ing
to hold spyware companie s accountable
for their abuses , some victims have sued
them in U.S. court , as have U.S. technolo-
gy companies whose produc ts have been
hijacked to deliver spyware to their users.
In response, spywa re companie s have
raised a lita ny of procedural defenses,
from foreign sovereign immunity to lack
of personal jurisdiction. One company re-
cently invoked the common law doctrine
of forum non conveniens (FNC), argu ing
that the United States is a n inconvenient
forum for claims bas ed on the transnation-
al deployment of spywa re.
Spyware at tacks not only violate t he
right to privacy but al so threaten the
freedoms of expre ssion, of association,
and of the press, and democr acy more
broadly. Reporters, secur ity researchers,
and advocac y groups have called atten-
tion to these attack s for years. Security
researchers at Citizen L ab and Amnesty
International’s Secu rity Lab, among oth-
ers, detected spy ware attacks targeti ng
pro-democracy protesters a nd activists
in ailand ; human rights lawyers and
investigative journa lists in India; polit ical
opposition gures in Poland ; Lama Fakih,
a prominent Lebanese act ivist and Human
Rights Watch director; a nd aliates of
the murdered Washington Post colum nist
Jamal Khashog gi. Multi-outlet journal ism
initiatives li ke the “Pegasus Project” and
the “Predator Files” have conducted in-
depth investigati ve reporting to bring these
kinds of attack s to public attention.
Concerned t hat the proliferation
of foreign commercia l spyware poses
threats to both U.S. nat ional security and
international human rig hts, the Biden
administration ha s taken direct action
agains t spyware companies. Firs t, it
added multiple spywa re companies to the
Department of Commerce ’s “Entity L ist,”
restric ting their use of U.S. tec hnology as
part of an expor t control regime designed
to prevent the proliferation of dangerous
weapons. en, it issued an executive
order restricting the U.S. government’s
own use of foreign commercial spyware
that poses national s ecurity threats or has
been linked to huma n rights abuses.
Meanwhile, severa l lawsuits attempting
to hold spyware companie s accountable
for their role in these abus es are current-
ly pending in U.S. cour ts. For example,
journalist s and members of the Salvadoran
newsgroup El Faro sued Israeli spywa re
company NSO Group, whose Peg asus
spyware was u sed to infect their phones
hundreds of times bet ween June 2020
and November 2021—a period during
which the outlet published mu ltiple
stories critica l of the Salvadoran govern-
ment. (Am. Compl., Dada v. NSO Group,
No. 3:22-cv-07513 (N.D. Cal. Dec. 16,
2022).) (We, along with ou r colleagues at
the Knight First A mendment Institute at
Columbia University, represent the plainti s
in that case.) Loujain a l-Halthloul, a human
rights activ ist who led the campaign to w in
women the right to drive in S audi Arabia,
sued Emirati spy ware company DarkMat-
ter, which allegedly hacke d her device to
enable real-time monitoring of her loc ation
and communic ations, ultimately le ading
to her arrest, detention, a nd torture. (Am.
Compl., AlHathloul v. DarkMatter Gr p., No.
3:21-CV-01787-IM (D. Or. Mar. 16, 2023).)
Hanan Khashog gi, the widow of Jamal
Khashoggi, sued NSO G roup, alleging that
its spyware was u sed to surveil her com-
munications with her husb and for nearly a
year leading up to his murder. (Khashoggi
v. NSO Group., No. 123CV779LMBLRV,
2023 WL 7094558 (E.D. Va. Oct. 26, 2023).)
Apple and WhatsApp have also sue d NSO
No Convenient Forum?
Spyware Companies’ Eorts to Kick
Victims’ Cases out of U.S. Court
By Mayze Teitler and Carrie DeCell
