Complaint of The Israeli Cyber Group NSO (Pegasus Spyware Producer) Against WhatsApp

Case: 20-16408, 02/05/2021, ID: 11995146, DktEntry: 65, Page 1 of 49
No. 20-16408
IN THE
United States Court of Appeals
for the Ninth Circuit
NSO GROUP TECHNOLOGIES LTD. ET AL.,
Defendants-Appellants,
v.
WHATSAPP INC. ET AL.,
Plaintiffs-Appellees.
On Appeal from the United States District Court

for the Northern District of California,
No. 4:19-cv-07123-PJH
APPELLANTS’ REPLY BRIEF
Jeffrey S. Bucholtz Joseph N. Akrotirianakis

KING & SPALDING LLP KING & SPALDING LLP
1700 Pennsylvania Ave., NW 633 W. 5th Street
2nd Floor Suite 1600
Washington, DC 20006 Los Angeles, CA 90071
jbucholtz@kslaw.com jakro@kslaw.com
Matthew V.H. Noller

KING & SPALDING LLP
621 Capitol Mall, Suite 1500 Counsel for Appellants
Sacramento, CA 95814 NSO Group Tech. Ltd. et al.
mnoller@kslaw.com
Dated: February 5, 2021
TABLE OF CONTENTS
Introduction ................................................................................................ 1
Argument .................................................................................................... 5
I. This Court has appellate jurisdiction because conduct-based

immunity is an immunity from suit .............................................. 5
II. Conduct-based immunity protects private agents of foreign

governments, whether natural persons or entities ..................... 11
A. WhatsApp forfeited its argument that conduct-based

immunity excludes private entities ....................................... 11
B. Conduct-based immunity protects private entities .............. 13
1. The common law protects private foreign agents,

including entities, for conduct in their capacity as
agents ............................................................................... 13
2. The FSIA does not exclude entities from conduct-

based immunity ............................................................... 19
C. WhatsApp’s and its amici’s policy arguments are

improper and irrelevant......................................................... 25
III. The district court’s factual findings show that NSO is

entitled to conduct-based immunity............................................. 31
A. WhatsApp forfeited any challenge to NSO’s evidence ......... 32
B. The district court correctly found that NSO is a foreign

agent that acted in its capacity as an agent ......................... 33
C. Conduct-based immunity protects foreign agents sued in

their individual capacity ........................................................ 38
Conclusion ................................................................................................. 41
Certificate of Compliance
i
TABLE OF AUTHORITIES
Page(s)
Cases
Alicog v. Kingdom of Saudi Arabia,

860 F. Supp. 379 (S.D. Tex. 1994) ................................................. 17, 18
Bilbrey v. Brown,
738 F.2d 1462 (9th Cir. 1984) .............................................................. 12
Broidy Cap. Mgmt., LLC v. Qatar,

982 F.3d 582 (9th Cir. 2020) ........................................................ passim
Butters v. Vance Int’l, Inc.,

225 F.3d 462 (4th Cir. 2000) ........................................................ passim
Carmichael v. Kellogg, Brown & Root Servs., Inc.,

572 F.3d 1271 (11th Cir. 2009) ............................................................ 30
Doğan v. Barak,
932 F.3d 888 (9th Cir. 2019) ........................................................ passim
Dole Food Co. v. Patrickson,

538 U.S. 468 (2003) ........................................................................ 20, 21
Farhang v. Indian Inst. of Tech.,

655 F. App’x 569 (9th Cir. 2016) ............................................. 5, 6, 8, 10
Fed. Rep. of Germany v. Philipp,

2021 WL 357254 (U.S. Feb. 3, 2021) ................................................... 28
Fields v. City of Chicago,

981 F.3d 534 (7th Cir. 2020) ................................................................ 11
Gieg v. DDR, Inc.,

407 F.3d 1038 (9th Cir. 2005) ............................................ 11, 12, 13, 33
Habyarimana v. Kagame,
696 F.3d 1029 (10th Cir. 2012) .............................................................. 7
ii
Herbage v. Meese,
747 F. Supp. 60 (D.D.C. 1990) ....................................................... 13, 14
Ivey ex rel. Carolina Golf Dev. Co. v. Lynch,

2018 WL 3764264 (M.D.N.C. Aug. 8, 2018) ........................................ 18
Jurisdictional Immunities of the State (Germany v. Italy),

I.C.J. Reports 2012, p. 99 (Int’l Ct. Justice 2012) ........................ 28, 29
Leite v. Crane Co.,

749 F.3d 1117 (9th Cir. 2014) ........................................................ 32, 34
Lewis v. Mutond,
918 F.3d 142 (D.C. Cir. 2019) ................................................................ 9
Liberi v. Taitz,
647 F. App’x 794 (9th Cir. 2016) ......................................................... 12
Matar v. Dichter,
563 F.3d 9 (2d Cir. 2009) ....................................................................... 7
Meridian Textiles, Inc. v. Topson Downs of Cal., Inc.,

605 F. App’x 671 (9th Cir. 2015) ......................................................... 12
Mireskandari v. Mayne,
2016 WL 1165896, (C.D. Cal. Mar. 23, 2016) ....................................... 7
Mireskandari v. Mayne,
800 F. App’x 519 (9th Cir. 2020) ................................................... 10, 39
Moriah v. Bank of China Ltd.,

107 F. Supp. 3d 272 (S.D.N.Y. 2015)................................................... 18
Murgia v. Reed,
338 F. App’x 614 (9th Cir. 2009) ......................................................... 33
Norkunas v. Wynn Las Vegas, LLC,

343 F. App’x 269 (9th Cir. 2009) ......................................................... 33
Rep. of Argentina v. NML Cap., Ltd.,

573 U.S. 134 (2014) .............................................................................. 21
iii
Rep. of Mexico v. Hoffman,

324 U.S. 30 (1945) ................................................................................ 10
Rishikof v. Mortada,
70 F. Supp. 3d 8 (D.D.C. 2014) ...................................................... 14, 15
Samantar v. Yousuf,
560 U.S. 305 (2010) ...................................................................... passim
St. Clair v. City of Chico,

880 F.2d 199 (9th Cir. 1989) ................................................................ 33
Terenkian v. Rep. of Iraq,

694 F.3d 1122 (9th Cir. 2012) .............................................................. 33
Underhill v. Hernandez,
65 F. 577 (2d Cir. 1895) ................................................................... 7, 39
Velasco v. Gov’t of Indonesia,

370 F.3d 392 (4th Cir. 2004) ................................................................ 17
Vincent v. The Money Store,

736 F.3d 88 (2d Cir. 2013) ................................................................... 25
WhatsApp Inc. v. NSO Grp. Tech. Ltd.,

2020 WL 5798378 (N.D. Cal. Sept. 29, 2020) ....................... 6, 7, 10, 31
Yousuf v. Samantar,
552 F.3d 371 (4th Cir. 2009) ................................................................ 18
Yousuf v. Samantar,
699 F.3d 763 (4th Cir. 2012) ........................................................ passim
Statutes
1 U.S.C. § 1 ............................................................................................... 25
15 U.S.C. § 1692a(6) ................................................................................. 25
28 U.S.C.
§ 1603(a) ............................................................................................... 19
§ 1603(b) ............................................................................................... 19
iv
Other Authorities
1 Op. Att’y Gen. 81 (1797) .................................................................... 9, 10
Brief for the United States as Amicus Curiae, CACI Premier

Tech., Inc. v. Shimari, No. 19-648 (U.S. Aug. 26, 2020)............... 16, 31
Brief for the United States as Amicus Curiae, Mutond v.

Lewis, No. 19-185 (U.S. May 26, 2020) ............................... 7, 14, 31, 39
Brief for the United States as Amicus Curiae, Samantar v.

Yousuf, No. 08-1555 (U.S. Jan. 27, 2020) ........................................... 22
Hazel Fox & Philippa Webb, The Law of State Immunity (3d
ed. 2013) ............................................................................................... 19
National Intelligence, The U.S. Intelligence Community’s

Five Year Strategic Human Capital Plan (June 2006) ...................... 30
Restatement (Second) of the Foreign Relations Law of the United States

§ 19 cmt. d, illus. 5 ............................................................................... 24
§ 66(c) .................................................................................................... 23
§ 66(f) .................................................................................................... 23
§ 66(g) ............................................................................................. 22, 23
Restatement (Third) of the Foreign Relations Law of the United States

§ 421 cmt. f ........................................................................................... 24
§ 481 cmt. g........................................................................................... 24
§ 487 cmt. c. .......................................................................................... 24
Statement of Interest of the United States, Matar v. Dichter,

No. 05-cv-10270 (S.D.N.Y. Nov. 17, 2006) .......................................... 39
Ved P. Nanda et al., 1 Litigation of International Disputes in

U.S. Courts § 3:59 (Dec. 2020 update) ................................................ 18
v
INTRODUCTION
WhatsApp’s brief confirms that it is asking this Court to dictate
how countries throughout the world may conduct important sovereign
activities. WhatsApp urges this Court to deny NSO immunity for the
express purpose of preventing foreign governments—and even the
United States—from purchasing surveillance software or using private
companies to assist their law-enforcement, intelligence, and national-
security operations. Longstanding principles of foreign sovereign
immunity prevent federal courts from granting such a request.
To support its intrusion into governments’ sovereignty, WhatsApp
relies on an arbitrary distinction between natural persons and entities.
WhatsApp concedes, as it must, that conduct-based immunity protects
private agents of foreign governments. But it argues that such agents are
protected only if they are natural persons. Entities, WhatsApp claims,
can never receive conduct-based immunity—even if, in the exact same
circumstances, a natural person would be immune.
The first problem with this argument is that WhatsApp forfeited it.
Though NSO claimed conduct-based immunity in the district court and
WhatsApp contested that claim, WhatsApp never argued that conduct-

based immunity categorically excludes entities. Even if WhatsApp had
not forfeited its argument, it is wrong. Conduct-based immunity, as
expressed in centuries of precedent and Executive Branch practice,
protects foreign governments’ private agents. None of that authority
distinguishes between natural persons and entities. The best response
WhatsApp can muster is that the cases NSO cites all happened to involve
natural persons as defendants. Not true: the Fourth Circuit has applied
conduct-based immunity to private entities. But even if it were true, it is
mere happenstance. WhatsApp and its amici cannot cite any case or
Executive Branch statement—not one—taking the position that conduct-
based immunity excludes entities.
The Foreign Sovereign Immunities Act is not to the contrary. That
statute, as the Supreme Court has held, applies only to lawsuits against
foreign states or state-owned entities that are equivalent to the state.
Beyond that narrow scope, the common law applies without modification
by the FSIA. The FSIA, therefore, no more bars immunity for private
entities than it does for foreign officials or individual agents.
There is good reason WhatsApp has not found any support for this
argument. Conduct-based immunity protects foreign nations’ freedom to
2
carry out their sovereign activities through agents. That freedom must
include the ability to choose the agent—whether an official, a private
individual, or a private entity—that can best achieve the government’s
goals. And so the rationale for conduct-based immunity provides no basis
for WhatsApp’s distinction between natural persons and entities. To the
contrary, drawing that distinction would impinge on foreign nations’
sovereignty.
For WhatsApp, however, impinging on foreign nations’ sovereignty
is the entire point of this lawsuit. WhatsApp and its amici present a
number of policy arguments that amount to a single claim: Foreign
governments and the United States should not be able to purchase
surveillance software or employ private companies, and this Court should
prevent them from doing so. But because WhatsApp acknowledges that
it cannot sue those governments directly, it asks this Court to open the
back door and hold foreign agents liable as proxies for immune foreign
governments. That is precisely what conduct-based immunity forbids.
Based on NSO’s undisputed evidence, the district court found that
NSO is an agent of foreign governments and that WhatsApp is suing NSO
for actions it took in its official capacity. Those factual findings satisfy
3
every element of conduct-based immunity. WhatsApp now seeks to
challenge NSO’s evidence, but it chose not to dispute the evidence in the
district court and may not present new factual claims on appeal. Even if
it could, it cannot show—does not even try to show—that the district
court’s factual findings are clearly erroneous.
Only in the last five pages of its brief does WhatsApp attempt to
defend the district court’s holding that conduct-based immunity does not
apply when a foreign agent is sued in its individual capacity. But even
WhatsApp’s amici know that’s wrong. As NSO has explained, and as
WhatsApp’s amici agree, conduct-based immunity would serve no
purpose if it did not protect foreign agents sued in their individual
capacity. As if to prove the point, WhatsApp argues that conduct-based
immunity exists only when a foreign state is the real party in interest.
But if the real party in interest is a foreign state, then the FSIA, not
conduct-based immunity, bars the suit. Under WhatsApp’s reasoning,
conduct-based immunity would be a nullity.
Conduct-based immunity is not a nullity. It has existed for more
than 200 years, protecting governments from lawsuits that would
prevent them from performing official acts through their agents. This is
4
just such a lawsuit. The Court should reverse the district court’s order
and hold that NSO is entitled to conduct-based immunity.
ARGUMENT
I. This Court Has Appellate Jurisdiction Because Conduct-

Based Immunity Is an Immunity from Suit
This Court has squarely held, with emphasis in the original, that
“common law foreign official immunity” is “‘an immunity from suit rather
than a mere defense to liability.’” Doğan v. Barak, 932 F.3d 888, 895 (9th
Cir. 2019). The Court has confirmed that holding by exercising
jurisdiction over a denial of conduct-based immunity. Farhang v. Indian
Inst. of Tech., 655 F. App’x 569, 570 (9th Cir. 2016). This precedent
forecloses WhatsApp’s argument that the Court lacks appellate
jurisdiction.
A. Recognizing that Doğan is fatal to its argument, WhatsApp
tries in vain to avoid it. Ans. Br. 21–22. WhatsApp contends, for example,
that “the case Doğan quoted” for its description of conduct-based
immunity “addresses only FSIA immunity.” Ans. Br. 21. But WhatsApp
admits that the only immunity at issue in Doğan was “conduct-based
immunity.” Id. So when this Court emphasized that “the whole point of
immunity is to enjoy ‘an immunity from suit rather than a mere defense
5
to liability,’” it was talking about conduct-based immunity. 932 F.3d at
895; see WhatsApp Inc. v. NSO Grp. Tech. Ltd., 2020 WL 5798378, at *4
(N.D. Cal. Sept. 29, 2020) (Doğan “considered foreign official immunity
to be immunity from suit rather than a defense to liability”).
Doğan’s controlling language was not, as WhatsApp claims, dicta.
Ans. Br. 22. 1 Instead, conduct-based immunity’s status as an immunity
from suit was an important “consideration[] counsel[ing] against
construing the TVPA to abrogate common law foreign official immunity.”
Doğan, 932 F.3d at 895. That reading of the TVPA, this Court held,
“would effectively extinguish the common law doctrine of foreign official
immunity” precisely because “the whole point of immunity is to enjoy ‘an
immunity from suit rather than a mere defense to liability.’” Id.
As for Farhang, WhatsApp simply ignores it. It likewise ignores the
Fourth Circuit’s decision in Yousuf v. Samantar, which held that an order
denying conduct-based immunity “is immediately appealable.” 699 F.3d
763, 768 n.1 (4th Cir. 2012). And it ignores the scores of other cases
1 Nor does it “run counter” to cases holding that other kinds of

immunity “are in fact ‘defense[s] to liability.’” Ans. Br. 22. Some
“immunities” are immunities from suit, and some are not. Conduct-based
immunity is. Cases about “state-action antitrust immunity” and “federal
sovereign immunity,” id., are irrelevant to that conclusion.
6
holding defendants “immune from suit” due to common-law immunity.
E.g., Habyarimana v. Kagame, 696 F.3d 1029, 1032 (10th Cir. 2012);
Matar v. Dichter, 563 F.3d 9, 14 (2d Cir. 2009); Mireskandari v. Mayne,
2016 WL 1165896, at *18–20 (C.D. Cal. Mar. 23, 2016), aff’d, 800 F. App’x
519 (9th Cir. 2020), cert. denied, 2020 WL 6551910 (U.S. Nov. 9, 2020).
These cases are correct. Conduct-based immunity “derives from the
immunity of the foreign sovereign,” WhatsApp, 2020 WL 5798378, at *4,
based on the principle that “the acts of the official representatives of the
state are those of the state itself,” Underhill v. Hernandez, 65 F. 577, 579
(2d Cir. 1895), aff’d, 168 U.S. 250 (1897). For that reason, “any act
performed by the individual as an act of the State enjoys the immunity
which the State enjoys.” Yousuf, 699 F.3d at 774 (cleaned up). WhatsApp
is thus wrong to dispute (at Ans. Br. 22) that “suits against foreign
officials implicate much the same considerations of comity and respect
for other nations’ sovereignty as suits against foreign states.” Brief for
the United States as Amicus Curiae at 13, Mutond v. Lewis, No. 19-185
(U.S. May 26, 2020). There is, therefore, “no reason to draw a distinction”
between “sovereign immunity under the FSIA” and conduct-based
7
“immunity under the common law” for the purposes of appellate
jurisdiction. Yousuf, 699 F.3d at 768 n.1.
B. In contrast to the authority supporting NSO, WhatsApp
cannot identify a single case holding that conduct-based immunity is not
an immunity from suit. Its argument, besides conflicting with Doğan,
Farhang, and Yousuf, fails on its own terms.
WhatsApp starts by arguing that because conduct-based immunity
applies when “the effect of exercising jurisdiction would be to enforce a
rule of law against the state,” it “turns on the nature of the judgment
granted.” Ans. Br. 19 (cleaned up). WhatsApp then claims that a
judgment triggers conduct-based immunity only when “money damages
or injunctive relief[] would bind (or be enforceable against) the foreign
state.” Id. (cleaned up). And so, WhatsApp concludes, “conduct-based
immunity operates as a defense to liability, not wholesale immunity from
suit.” Ans. Br. 20.
Every step of that argument is wrong. Under Doğan, conduct-based
immunity applies when the very act of “exercising jurisdiction”—not
entering a judgment—would “enforce a rule of law against the state.” 932
F.3d at 893–94 (cleaned up) (emphasis added). That focus on “exercising
8
jurisdiction” asks whether the court can subject the defendant to suit at
all, not merely whether it can enter a judgment after trial.
WhatsApp’s confusion on this point stems from its reliance on Lewis
v. Mutond, 918 F.3d 142 (D.C. Cir. 2019), to argue that conduct-based
immunity does not exist when a “judgment runs only against the agent
in a personal capacity.” Ans. Br. 19–20. But as explained in more detail
below—and confirmed by WhatsApp’s amici—that is incorrect. Infra Part
III.C; Scholars Amicus Br. 18–20. This Court recognized in Doğan that a
lawsuit would “enforce a rule of law against the state” when it challenges
the defendant’s conduct on behalf of a foreign state, whether or not a
judgment would be enforceable against the state. 932 F.3d at 894.
Finally, if conduct-based immunity were only “a defense to
liability,” it could rarely if ever be granted before trial. Ans. Br. 20.
WhatsApp uses seven out-of-context words from Attorney General Lee’s
1797 opinion to argue that plaintiffs who sue foreign officials are “entitled
to a trial according to law.” Ans. Br. 20 (quoting 1 Op. Att’y Gen. 81
(1797)). But Attorney General Lee opined that U.S. courts lack
jurisdiction over suits against foreign agents. 1 Op. Att’y Gen. 81. The
language WhatsApp quotes, on the other hand, explained Attorney
9
General Lee’s view that the Executive Branch cannot intervene to ask
courts to dismiss private lawsuits on immunity grounds—a view the
Supreme Court later rejected. Compare id. (“the Executive cannot
interpose with the judiciary proceedings”), with Rep. of Mexico v. Hoffman,
324 U.S. 30, 36 (1945) (holding that courts must “follow the executive
determination” on immunity); see Scholars Amicus Br. 5 (explaining that
“State Department” did not “formalize” its “practice of ‘suggesting’
immunity” until 1952). Whichever way that language from 1797 is
interpreted, today conduct-based immunity is a jurisdictional defense
that can and should be resolved on a motion to dismiss. Mireskandari,
800 F. App’x at 519–20; Doğan, 932 F.3d at 892–97; WhatsApp, 2020 WL
5798378, at *5. So there is no doubt that when a defendant is entitled to
conduct-based immunity, the plaintiff is not “entitled to a trial.” Ans. Br. 20.
For these reasons, WhatsApp’s arguments would not justify
dismissal of this appeal even if it were an open question whether conduct-
based immunity is an immunity from suit. But it is not an open question.
Doğan, 932 F.3d at 895; Farhang, 655 F. App’x at 570; Yousuf, 699 F.3d
at 768 n.1. To hold otherwise would require this Court to reject its own
precedent and create a split with the Fourth Circuit. It should not do so.
10
II. Conduct-Based Immunity Protects Private Agents of

Foreign Governments, Whether Natural Persons or Entities
NSO has established that conduct-based immunity protects private
agents of foreign governments. NSO Br. 6–15. WhatsApp does not
disagree. It seeks, however, to limit that immunity to natural persons,
categorically excluding entities like NSO. But WhatsApp forfeited that
argument, and it is wrong on the merits.
A. WhatsApp Forfeited Its Argument That Conduct-Based

Immunity Excludes Private Entities
This appeal marks the first time WhatsApp has argued that entities
cannot claim conduct-based immunity. In the district court, WhatsApp
never argued that common-law immunity excludes private entities or
that the FSIA provides the only grounds for entity immunity. WhatsApp
forfeited these arguments by not raising them in the district court, and
this Court should not consider them. Gieg v. DDR, Inc., 407 F.3d 1038,
1046 n.10 (9th Cir. 2005).
Recognizing this problem, WhatsApp argues that this Court may
affirm “on any basis supported by the record.” Ans. Br. 17. But that is
true only when the ground for affirmance “was presented to the district
court . . . such that the appellee did not waive it in that court.” Fields v.
City of Chicago, 981 F.3d 534, 557 n.4 (7th Cir. 2020). If an appellee
11
forfeits an argument in the district court, it may not raise it on appeal.
Liberi v. Taitz, 647 F. App’x 794, 796 n.1 (9th Cir. 2016); Meridian
Textiles, Inc. v. Topson Downs of Cal., Inc., 605 F. App’x 671, 672 n.1 (9th
Cir. 2015); Gieg, 407 F.3d at 1046 n.10; Bilbrey v. Brown, 738 F.2d 1462,
1466 n.6 (9th Cir. 1984). That is what WhatsApp did here.
WhatsApp next suggests that it may raise its new arguments on
appeal because, it says, NSO did not seek conduct-based immunity below.
Ans. Br. 23. That is false. The district court recognized that NSO
“contend[ed] that conduct-based foreign sovereign immunity applies to a
foreign sovereign’s private agents when the agent acts on behalf of the
state and that this standard applies to [NSO’s] conduct on behalf of
foreign sovereigns.” ER11; see D. Ct. Dkt. No. 45 at 10 (arguing that
“private agents acting on behalf of foreign sovereigns” are immune); D.
Ct. Dkt. No. 62 at 10 (claiming entitlement to “conduct-based immunity”).
WhatsApp even opposed NSO’s motion by arguing that NSO was not
entitled to “conduct-based foreign-official immunity.” D. Ct. Dkt. No. 55
at 5–6. But it did so only based on its argument that “the effect of a
judgment in Plaintiffs’ favor would not be to enforce a rule of law against”
NSO’s government customers. Id. Nowhere did WhatsApp argue that
12
conduct-based immunity excludes private entities. It may not raise that
argument for the first time on appeal. Gieg, 407 F.3d at 1046 n.10.
B. Conduct-Based Immunity Protects Private Entities
Even if WhatsApp had preserved its argument that conduct-based
immunity protects only natural persons, it is incorrect. Conduct-based
immunity protects foreign agents for their official conduct, without
regard to an agent’s status as an individual or entity.
1. The Common Law Protects Foreign Agents,

Including Entities, for Conduct in Their Capacity
as Agents
WhatsApp does not dispute that conduct-based immunity protects
foreign governments’ private agents when they act in their capacity as
agents. NSO Br. 6–15. Nothing in the “judicial precedent, legal treatises,
and Executive Branch practice” WhatsApp cites limits that immunity “to
natural persons.” Ans. Br. 24. Instead, the precedent supports treating
entities the same as all other agents.
a. Most fundamentally, conduct-based immunity has never
turned on “the identity of the person or entity [seeking immunity] so
much as the nature of the act for which the person or entity is claiming
immunity.” Herbage v. Meese, 747 F. Supp. 60, 66 (D.D.C. 1990). Conduct-
based immunity exists to protect the foreign government, which must act
13
“through its agents.” Id. For that reason, conduct-based immunity
focuses not on an agent’s “status” but on “the act itself and whether the
act was performed on behalf of the foreign state.” Rishikof v. Mortada, 70
F. Supp. 3d 8, 13 (D.D.C. 2014); accord Mutond Amicus Br. 10
(“[C]onduct-based foreign-official immunity generally turns on whether
the challenged action was taken in an official capacity.”).
Because conduct-based immunity depends on the nature of the
challenged action, it does not categorically exclude any “person or entity”
from its reach. Herbage, 747 F. Supp. at 66 (emphasis added). Since
foreign governments “need flexibility to hire private agents,” Butters v.
Vance Int’l, Inc., 225 F.3d 462, 466 (4th Cir. 2000), they may hire either
private entities or individuals as the circumstances require. Whether the
agent is an entity or an individual has nothing to do with whether it acts
“on behalf of the foreign state.” Rishikof, 70 F. Supp. 3d at 13. If
WhatsApp’s argument were correct, for example, a foreign government
could hire a team of programmers to design technology like NSO’s, and
those programmers would enjoy conduct-based immunity. But if those
same programmers chose to form a company, there would be no immunity
14
for the exact same conduct. Nothing but empty formalism would justify
that result.
WhatsApp suggests that entities and individuals are meaningfully
different because entities cannot “serve ‘in office.’” Ans. Br. 26. But all
that proves is that private entities are not “foreign officials.” Ans. Br. 25.
It says nothing about whether entities can be foreign agents. 2 Private
individuals also do not “serve ‘in office,’” id., but WhatsApp does not deny
that they may receive conduct-based immunity. That is because the
relevant question for agents is whether “the act was performed on behalf
of the foreign state.” Rishikof, 70 F. Supp. 3d at 13. That question
supports no distinction between entities and natural persons, all of whom
can equally act on a foreign state’s behalf.
b. WhatsApp also argues that conduct-based immunity cannot
include entities because the defendants in the relevant cases have been
natural persons. Ans. Br. 26–28, 30–33. But the fact that these cases
uniformly hold that individual agents are immune in no way suggests
2 WhatsApp’s amici also overlook that foreign agents may be immune

even if they are not foreign officials. Amici’s discussion of conduct-based
immunity focuses exclusively on foreign officials, so it does not inform the
question whether entities may be foreign agents. Scholars Amicus Br. 15–18.
15
that entities are not. The happenstance that defendants in previous cases
were natural persons reflects nothing more than the fact that foreign
governments have increased their reliance on contractors in “recent
decades,” Ans. Br. 51, so earlier lawsuits were unlikely to involve private
entities. That historical accident reveals nothing about the substantive
scope of conduct-based immunity.
Conversely, if conduct-based immunity really “always has been[]
limited to natural persons” as WhatsApp confidently declares, Ans. Br.
23, one would expect WhatsApp to cite at least one case saying so. But
WhatsApp and its amici cannot identify a single case holding that entities
are categorically ineligible for conduct-based immunity. Ans. Br. 26–28;
Scholars Amicus Br. 12–18, 20–21. Nor can they cite any example of the
Executive Branch denying conduct-based immunity to an entity because
of its entity status. Ans. Br. 30–33. In fact, the United States has reserved
the right to argue that its 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 10 n.1, CACI
Premier Tech., Inc. v. Shimari, No. 19-648 (U.S. Aug. 26, 2020).
16
In any event, it is not true that “[n]o authority has ever recognized
conduct-based immunity for a corporate contractor.” Ans. Br. 25
(emphasis omitted). The Fourth Circuit did exactly that in Butters. 225
F.3d at 466. Though Butters may not have used the words “conduct-based
immunity,” Ans. Br. 28, it applied the same test, holding that private
agents are immune “when following the commands of a foreign sovereign
employer,” 225 F.3d at 466. 3 And it did so based on conduct-based
immunity’s rationale, observing that “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. The Fourth
Circuit has recognized this point. See Velasco v. Gov’t of Indonesia, 370
F.3d 392, 398–99 (4th Cir. 2004) (recognizing that Butters addressed the
3 Butters’s reliance on Alicog v. Kingdom of Saudi Arabia, 860 F. Supp.

379 (S.D. Tex. 1994), proves the point. Contrary to WhatsApp’s brief,
Alicog did not grant immunity “under Texas law.” Ans. Br. 44 (cleaned
up). Alicog referenced “Texas law” to find that the agent defendants “did
not knowingly participate in a wrong,” 860 F. Supp. at 381, but it derived
their immunity from Saudi officials’ immunity under federal and
international law, id. at 382-85. For that conclusion, it cited a federal
decision applying foreign sovereign immunity, not Texas law. Id. at 384
(citing Skeen v. Federative Rep. of Brazil, 566 F. Supp. 1414 (D.D.C.
1983)). In any event, Butters’s reliance on Alicog makes clear that Butters
does not “depend on its ‘analogy’ to the federal-contractor defense,” as
WhatsApp claims. Ans. Br. 43; see NSO Br. 43–44. Alicog did not so much
as mention the federal-contractor defense.
17
“expansion of foreign sovereign immunity” to foreign agents). And later
cases have interpreted Butters as granting conduct-based immunity. Ivey
ex rel. Carolina Golf Dev. Co. v. Lynch, 2018 WL 3764264, at *2, 6–7
(M.D.N.C. Aug. 8, 2018); Moriah v. Bank of China Ltd., 107 F. Supp. 3d
272, 277 & n.34 (S.D.N.Y. 2015).
WhatsApp argues that Butters was “abrogated” by Samantar v.
Yousuf, 560 U.S. 305 (2010), Ans. Br. 28, but that is wrong. After
Samantar, Butters can no longer be read as locating the source of foreign
agents’ immunity in the FSIA. 4 But Samantar nowhere rejects Butters’s
holding that private entities are immune when they act as foreign
governments’ agents. That holding—as with other pre-Samantar
decisions interpreting the FSIA—remains “instructive for post-Samantar
questions of common law immunity.” Yousuf, 699 F.3d at 774; see Ved P.
Nanda et al., 1 Litigation of International Disputes in U.S. Courts § 3:59
4 In fact, it is not clear that Butters granted the agent FSIA immunity.
The case can be read as finding Saudi Arabia immune under the FSIA,
while finding its agent immune under the common law. That reading is
supported by the fact that the Fourth Circuit also issued the decision
affirmed in Samantar, in which it held that the FSIA does not protect
foreign agents without ever suggesting that it was overruling Butters.
Yousuf v. Samantar, 552 F.3d 371 (4th Cir. 2009).
18
n.132 (Dec. 2020 update) (citing Butters as good law); Hazel Fox &
Philippa Webb, The Law of State Immunity 444, 453 (3d ed. 2013) (same).
Finally, neither WhatsApp nor its amici cite any international-law
source taking the position that conduct-based immunity excludes
entities. Quite the opposite: WhatsApp’s amici cite a provision of the U.N.
Convention on Jurisdictional Immunities of States and their Property
immunizing “entities” that “are entitled to perform and are actually
performing acts in the exercise of sovereign authority of the State.”
Scholars Amicus Br. 23 (quoting U.N. Convention art. 2(1)(b)(iii)). That
describes NSO.
2. The FSIA Does Not Exclude Entities from

Conduct-Based Immunity
Without the common law on its side, WhatsApp argues that the
FSIA “establish[es] the sole circumstances under which artificial entities
may obtain foreign sovereign immunity.” Ans. Br. 34. Not so.
The FSIA is a specific and narrow statute that governs only
“whether a foreign state is entitled to sovereign immunity.” Samantar,
560 U.S. at 313 (emphasis added). Its definition of “foreign state” thus
incorporates entities that, because they are state-owned “agenc[ies] or
instrumentalit[ies],” are equivalent to foreign states. Id. at 314; 28 U.S.C.
19
§ 1603(a)–(b). But that definition limits only which entities possess
immunity as foreign states under the FSIA. When a plaintiff sues a
foreign official or other defendant that is not “a foreign state as the [FSIA]
defines that term,” the FSIA has no force. Samantar, 560 U.S. at 325.
Those suits are “governed by the common law.” Id.
The FSIA, therefore, has nothing to say about whether private
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. It is no response to point out, as WhatsApp does,
that the FSIA is “‘comprehensive . . . in every civil action against a foreign
state or its political subdivisions, agencies or instrumentalities.’” Ans. Br.
36 (quoting Rep. of Austria v. Altmann, 541 U.S. 677, 691 (2004))
(emphasis added). In fact, that language confirms NSO’s argument.
Where, as here, the defendant is a private foreign agent, the suit is not
“against a foreign state or its political subdivisions, agencies or
instrumentalities.” Id. The suit thus falls outside the FSIA and is
governed by the common law. Samantar, 560 U.S. at 325.
That is why WhatsApp’s reliance on Dole Food Co. v. Patrickson,
538 U.S. 468 (2003) (Ans. Br. 36), is misplaced. Dole rejected “FSIA
20
immunity” for two companies that “could not satisfy the FSIA’s definition
of ‘instrumentality of a foreign state.’” Ans. Br. 36; Dole, 538 U.S. at 473–
74. NSO does not seek FSIA immunity, so whether it is immune depends
not on the FSIA’s definition of “instrumentality,” but on the scope of
common-law conduct-based immunity. WhatsApp’s amici’s citation to
Republic of Argentina v. NML Capital, Ltd., 573 U.S. 134, 142 (2014)
(Scholars Amicus Br. 11–12), is equally off-base, since the defendant
there was a foreign state seeking immunity not provided by the FSIA.
NSO does not claim to be a foreign state under the FSIA. To the contrary,
NSO is what the district court found it to be: a foreign agent acting in its
official capacity. ER11. The common law, not the FSIA, determines
whether such agents are entitled to conduct-based immunity. Samantar,
560 U.S. at 325.
This conclusion does not “rewrite the FSIA’s rules for corporate
immunity.” Ans. Br. 39. It merely acknowledges that Congress did not
intend those rules, which govern only in limited circumstances, to
“supersede” conduct-based immunity. Samantar, 560 U.S. at 320. This is
because foreign-state immunity—the FSIA’s exclusive focus—and
conduct-based immunity are different doctrines with different
21
requirements. Foreign-state immunity depends on the identity of the
defendant and, when it applies, is “virtually absolute.” Id. at 311.
Conduct-based immunity, in contrast, depends on the defendant’s
conduct and is subject to limitations that do not apply to foreign-state
immunity. Id. at 321. 5
This same point rebuts WhatsApp’s argument that section 66 of the
Second Restatement excludes entities from conduct-based immunity.
Ans. Br. 29–30. Like the FSIA, subsection (g) of section 66 describes
immunity for all corporations that are “comparable to . . . an agency of
the state.” Restatement (Second) of the Foreign Relations Law of the
United States § 66(g). That is status-based immunity, distinct from the
conduct-based immunity that subsection (f) of section 66 describes for
5 WhatsApp worries that entities may enjoy conduct-based immunity

“even if the FSIA’s exceptions to immunity . . . would not apply.” Ans. Br.
39. But that is neither surprising nor troubling; the Executive Branch
has “suggested immunity under the common law for individual officials
even when the foreign state did not qualify.” Samantar, 560 U.S. at 321–
22. Absent such a suggestion, it is not clear whether a court should hold
a foreign agent immune when the foreign state would not be. See Brief
for the United States as Amicus Curiae at 22–23, Samantar v. Yousuf,
No. 08-1555 (U.S. Jan. 27, 2020) (explaining that the Executive makes
that decision based on cases’ “distinctive considerations”). Here, though,
WhatsApp does not deny that NSO’s government customers are immune
under the FSIA, so WhatsApp’s worry is misplaced.
22
“agent[s] of the state with respect to acts performed in [their] official
capacity.” Id. § 66(f). These discrete bases for immunity cover different
categories of defendants and have different requirements, so there is no
reason to suppose that section 66(g) forecloses conduct-based immunity
under section 66(f) when an entity acts as a foreign agent but is not
equivalent to a state agency.
The other terms in section 66(f) are consistent with this conclusion.
Contra Ans. Br. 29. Section 66(f) covers “any other public minister,
official, or agent of the state,” with “other” referring to the categories of
defendants in sections 66(a)–(e). Restatement (Second) § 66(f) (emphasis
added). While some of the defendants in those sections are natural
persons, others—such as “any governmental agency,” id. § 66(c)—are not.
All of those defendants, natural and artificial, are covered by section
66(f)’s use of the word “other.” And section 66’s two “illustrations”
involving natural persons, Ans. Br. 29–30, are too small a sample to
reveal anything meaningful about the scope of conduct-based immunity.
So section 66, as a whole, does not limit the “agent[s]” described in section
66(f) to natural persons.
23
Neither does section 66(f)’s incidental use of the pronoun “his.” Ans.
Br. 29. Section 66(f) refers to two categories—public ministers and
officials—that are likely limited to natural persons, and one category—
agents—that includes both natural persons and entities. It is simply
more convenient to refer to that mixed company with “his”—as was even
more common in the 1960s when the Second Restatement was written—
than with the more cumbersome “his, her, or its.”
Indeed, other Restatement provisions use “his” in connection with
terms that include entities. For example, when explaining nations’
jurisdiction to prescribe choice-of-law rules, the Second Restatement uses
“his” to refer to litigants that would include entities. Restatement
(Second) § 19 cmt. d, illus. 5. The Third Restatement explains that a court
may enforce a foreign judgment or arbitral award only if it has
jurisdiction over the “debtor or his property.” Restatement (Third) of the
Foreign Relations Law of the United States §§ 481 cmt. g, 487 cmt. c.
(emphasis added). And it says a U.S. state may “exercise [personal]
jurisdiction” over a “person” who “has his domicile or residence in that
State.” Id. § 421 cmt. f (emphasis added). A debtor obviously can be an
entity, as can a defendant subject to personal jurisdiction. So in these
24
contexts, as in section 66(f), the use of “his” reflects mere drafting
convenience. 6 It cannot bear the substantive weight WhatsApp gives it.
C. WhatsApp’s and Its Amici’s Policy Arguments Are

Improper and Irrelevant
As just explained, common-law conduct-based immunity does not
distinguish between natural persons and entities. If it did, that would
violate nations’ sovereignty by allowing foreign courts to restrict their
“flexibility to hire private agents.” Butters, 225 F.3d at 466.
To WhatsApp, though, restricting governments’ sovereignty is a
feature of its position, not a bug. Through a series of policy arguments,
WhatsApp asks this Court to wield conduct-based immunity as a tool for
controlling governments’ conduct. WhatsApp tells 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.” Ans. Br. 49–50. It asserts that “private actors . . . should not
6 The U.S. Code likewise uses personal pronouns to refer to groups of

both natural persons and entities. See 1 U.S.C. § 1 (“the word[] . . .
‘whoever’ include[s] corporations”). For instance, the Fair Debt Collection
Practices Act defines “debt collector” to include “any creditor who, in the
process of collecting his own debts, uses any name other than his own.”
15 U.S.C. § 1692a(6) (emphasis added). This definition covers entities.
E.g., Vincent v. The Money Store, 736 F.3d 88, 97–105 (2d Cir. 2013).
25
share” state power, and that a government should not be allowed to
“launder[]” its sovereign activities “through a private entity.” Id.
These arguments have no place in the sovereign-immunity
analysis. 7 The purpose of conduct-based immunity is emphatically not to
let private litigants like WhatsApp shape the “international system” to
their own financially motivated preferences. Ans. Br. 50. Conduct-based
immunity ensures that questions of international relations—such as
whether a country’s “objectives” are sufficiently “transparen[t],” or
whether governments should “rely[] on private companies,” Ans. Br. 50—
are resolved by nations, acting through proper diplomatic channels.
Indeed, this Court recently held that “a foreign government’s deployment
of [private] clandestine agents to collect foreign intelligence on its behalf”
is “the sort of peculiarly sovereign conduct that all national governments
(including our own) assert the distinctive power to perform.” Broidy Cap.
7 In any event, the arguments do not distinguish between private

entities and private individuals, whom WhatsApp does not deny are
entitled to conduct-based immunity. Private individuals, like entities,
“need not be foreign officials” or “governmental employees”; they can
have a “profit motive” and “sell their services to multiple foreign clients”;
and they are “independent actor[s]” who assist governments in the
exercise of their “responsibilities and powers.” Ans. Br. 47–51. So even if
WhatsApp’s arguments were relevant, they would not support denying
entities the immunity undisputedly available to private individuals.
26
Mgmt., LLC v. Qatar, 982 F.3d 582, 595 (9th Cir. 2020). By asking this
Court to restrict how governments perform such “uniquely sovereign
actions,” id., WhatsApp is seeking to do precisely what conduct-based
immunity forbids.
WhatsApp’s amici take the same approach, asking this Court to
deny immunity as a means to stop governments from using surveillance
technology. E.g., Access Now Amicus Br. 1–2; Kaye Amicus Br. 5–6;
Electronic Frontier Found. (“EFF”) Amicus Br. 6; Microsoft Amicus Br.
12. They assert, based on unverified and inflammatory accusations, that
governments use NSO’s technology to violate international law. E.g.,
Access Now Amicus Br. 10–26; Kaye Amicus Br. 3–8; EFF Amicus Br. 4–
26. These accusations are inadmissible in this appeal. Infra at 34 n.8. In
addition, some of them are false, based on a mistaken belief that NSO
operates its technology. NSO does not operate its technology. ER54–55.
Other accusations are misleadingly incomplete, omitting information
that inconveniently complicates WhatsApp’s amici’s narratives. But even
if that were not so, the accusations are not relevant to whether conduct-
based immunity protects entities.
27
As WhatsApp admits, conduct-based immunity applies “irrespective
of whether [the defendant] has violated federal law.” Ans. Br. 44. It also
applies when the defendant has violated international law. Doğan, 932
F.3d at 896–97; cf. Fed. Rep. of Germany v. Philipp, 2021 WL 357254, at
*7 (U.S. Feb. 3, 2021) (recognizing “international law’s preservation of
sovereign immunity for violations of human rights law”). And so
WhatsApp’s amici’s accusations have nothing to do with whether NSO is
entitled to immunity. The same is true for WhatsApp’s amici’s
arguments, echoed by WhatsApp, that NSO must be held liable to provide
a “remedy” to individuals injured by alleged violations of international
law. Kay Amicus Br. 3–4, 18–21; accord Ans. Br. 49; Access Now Amicus
Br. 31–34; EFF Amicus Br. 5. For one thing, this Court has found no
“clear rule of international law that would impose a mandatory and
judicially enforceable duty” against the sort of conduct alleged by
WhatsApp’s amici. Broidy Cap. Mgmt., 982 F.3d at 592. For another,
when someone is injured by a government’s sovereign conduct, the
solution is “negotiation involving the . . . States concerned,” not a private
lawsuit in another country’s courts. Jurisdictional Immunities of the
State (Germany v. Italy), I.C.J. Reports 2012, p. 99, at 144 ¶ 104 (Int’l Ct.
28
Justice 2012). And even if diplomatic solutions fail, immunity never
“depend[s] upon the existence of effective alternative means of securing
redress.” Id. at 143 ¶ 101.
Nothing about NSO’s entity status justifies shunning the “political
. . . redress” available to parties who claim to be “aggrieved” by a
government’s conduct. Ans. Br. 49. Far from “fall[ing] into a regulatory
void,” id., NSO is heavily regulated by its home nation of Israel. ER52–
53. Israel has many options if it concludes that NSO has violated the law,
including denying NSO the right to serve certain customers and
rescinding its license to conduct business at all. ER52 ¶ 6, 55 ¶ 12. So if
WhatsApp believes it has been wronged by NSO’s actions on behalf of
foreign states, it should ask Israel—either directly or through the U.S.
government—to take action. But WhatsApp may not use a lawsuit
against an agent of foreign nations to prevent those nations from
choosing the agents through which they “perform uniquely sovereign
actions.” Broidy Cap. Mgmt., 982 F.3d at 595.
WhatsApp’s arguments are not, moreover, limited to foreign
countries. Its theory that private entities cannot invoke conduct-based
immunity would allow other nations to sue U.S. contractors to disrupt
29
the United States’ military and intelligence operations. NSO Br. 47–49.
Instead of disputing this fact, WhatsApp embraces it, citing the United
States’ use of private contractors as a prime example of the sovereign
conduct it hopes its lawsuit will discourage. Ans. Br. 48 n.15. WhatsApp
seeks to disarm all nations, including the United States, by preventing
them from using any technology or other tools they cannot manufacture
themselves.
But whatever WhatsApp’s policy concerns with private contractors,
the United States often has “no choice but to use [them].” Office of the
Director of National Intelligence, The U.S. Intelligence Community’s Five
Year Strategic Human Capital Plan 6 (June 2006). This Court has
recognized that the United States has “the distinctive power” to “deploy[]
clandestine agents” in its intelligence operations. Broidy Cap. Mgmt., 982
F.3d at 595. How and when the United States does so involves “many
sensitive judgments” that judges should not “second-guess[].” Carmichael
v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1275 (11th Cir.
2009). WhatsApp’s argument would allow foreign courts to do exactly
that, by exercising jurisdiction over contractors that supply and support
the U.S. government. Conduct-based immunity exists to prevent that
30
result. Mutond Amicus Br. 16; see Shimari Amicus Br. 10 n.1 (suggesting
U.S. government contractors may be immune in foreign courts).
III. The District Court’s Factual Findings Show That NSO Is

Entitled to Conduct-Based Immunity
The district court here identified a “three-factor test” for conduct-
based immunity: (1) “whether the actor is a[n] . . . agent of the foreign
state,” (2) “whether the acts were performed in [the agent’s] official
capacity,” and (3) “whether exercising jurisdiction would serve to enforce
a rule of law against the foreign state.” ER11. The court found, as a
matter of fact, that NSO “met the first and second factors.” WhatsApp,
2020 WL 5798378, at *7. Indeed, it found those factors undisputed:
WhatsApp did “not contest” that NSO is an “agent[] of foreign
governments,” and it did not argue that NSO “operated outside [its]
official capacity.” ER11. The court denied NSO immunity based solely on
its erroneous analysis of the third factor. NSO Br. 33–36.
WhatsApp now seeks to contest the district court’s factual findings
on the first two factors. But WhatsApp did not dispute those findings
below and cannot do so for the first time on appeal. Even if it could, it
cannot show that the district court’s findings were clearly erroneous.
31
Those findings, when analyzed under the correct legal standard,
establish that NSO is immune.
A. WhatsApp Forfeited Any Challenge to NSO’s Evidence
When NSO moved to dismiss WhatsApp’s complaint, it submitted
declarations that substantiated its claim of immunity. ER51–61. By
doing so, it raised a “factual” challenge to the district court’s jurisdiction.
ER9. That shifted the burden to WhatsApp to rebut NSO’s evidence with
its own “‘competent proof,’ under the same evidentiary standard that
governs in the summary judgment context.” Leite v. Crane Co., 749 F.3d
1117, 1121 (9th Cir. 2014) (citations omitted); see ER5.
WhatsApp did not even try to meet its burden. Although it now
describes NSO’s affidavits as “self-serving and unverified,” Ans. Br. 24,
it did not submit any affidavits or evidence to contradict them. It offered
no evidence—or even argument—to show that NSO is not an agent of
foreign governments or that WhatsApp challenges any actions NSO took
outside of its official role as such an agent. The one supposed fact
WhatsApp now cites—a document it says “show[s] that NSO does not
solely contract with foreign governments,” Ans. Br. 47—appears nowhere
in its opposition to NSO’s motion to dismiss.
32
By not raising its factual arguments in the district court, WhatsApp
forfeited them, giving up its ability to dispute NSO’s evidence. Norkunas
v. Wynn Las Vegas, LLC, 343 F. App’x 269, 270–71 (9th Cir. 2009);
Murgia v. Reed, 338 F. App’x 614, 615 & n.1 (9th Cir. 2009); Gieg, 407
F.3d at 1046 n.10; St. Clair v. City of Chico, 880 F.2d 199, 203–04 (9th
Cir. 1989). Granting NSO immunity would not, therefore, “license
unlawful conduct by any private corporation that submitted a . . .
declaration.” Ans. Br. 24. It would simply enforce the well-settled rule
that a defendant is immune when its uncontradicted evidence satisfies
all the requirements for immunity.
B. The District Court Correctly Found That NSO Is a

Foreign Agent That Acted in Its Capacity as an Agent
Even if WhatsApp had not forfeited its challenge to the district
court’s factual findings, it is wrong to claim that this Court has the raw
“authority to reach a contrary conclusion.” Ans. Br. 61. Instead, this
Court reviews the district court’s “factual findings for clear error.”
Terenkian v. Rep. of Iraq, 694 F.3d 1122, 1132 (9th Cir. 2012). WhatsApp
does not claim that the district court’s findings were clearly erroneous,
and none of its arguments shows that they were.
33
1. The record confirms the district court’s finding that NSO is an
“agent[] of foreign governments.” ER11. NSO’s declarations established
this fact. ER53–55 ¶¶ 9–10, 14. In response, WhatsApp did not submit
or point to any evidence showing that NSO has ever acted on behalf of
any private customer, let alone in connection with the conduct described
in WhatsApp’s complaint. ER11.
WhatsApp now cites a contract it claims shows NSO selling its
Pegasus software to a private reseller. Ans. Br. 57. WhatsApp forfeited
its reliance on this document by not raising it in the district court. Supra
Part III.A. 8 Setting that aside, the contract does not show that the district
court’s factual findings were clearly erroneous. Rather, it states that NSO
would “provide” its software to Ghana, not to a private reseller. ER144
¶ 2.1. NSO would likewise provide the services described in the contract
8 WhatsApp’s amici go even farther outside the record for their

irrelevant accusations about NSO and its government customers. Supra
at 27–29. The accusations are unverified and based on multiple levels of
hearsay, a far cry from the “‘competent proof’” necessary to rebut NSO’s
evidence “under the same evidentiary standard that governs in the
summary judgment context.” Leite, 749 F.3d at 1121.
34
to Ghana, not to the reseller. ER144 ¶ 2.2; ER150. 9 And, as required by
Israeli law, the entire transaction was subject to review and approval by
“IMOD,” Israel’s Ministry of Defense. ER52–53 ¶ 6, 145–46 ¶ 5.1. So
under this contract, as with all of NSO’s other contracts, NSO was the
“agent[] of [a] foreign government,” not the agent of any private party.
ER11.
2. The record likewise supports the district court’s finding that
WhatsApp challenges alleged actions NSO took in its “official capacity”
as a foreign agent. ER11. NSO designs, sells, and supports its technology
exclusively for and to foreign governments. ER53 ¶ 9. Foreign
governments, not NSO, decide whether and how to use the technology.
ER54–55 ¶ 14. Foreign governments, not NSO, operate the technology.
Id. And so, with respect to the conduct alleged in WhatsApp’s complaint,
NSO “w[as] acting [within] the scope of [its] contracts” with foreign
governments. ER11.
9 NSO is not a party to the contract, and the transaction contemplated

by the contract never occurred. For purposes of this appeal, however,
NSO takes the document at face value.
35
WhatsApp did not dispute this point in opposition to NSO’s motion
to dismiss. 10 But now it claims to challenge conduct that NSO did not
perform in its capacity as a foreign agent. Ans. Br. 58. Again, WhatsApp
cannot raise this argument for the first time on appeal. Supra Part III.A.
In any event, WhatsApp does not show that the district court clearly
erred. The conduct WhatsApp describes—the creation of, marketing of,
and support for NSO’s technology—was all conducted for the purpose of
serving as an agent of foreign governments. ER52–54 ¶¶ 3, 9, 14.
WhatsApp does not claim or prove that NSO has ever acted on behalf of,
or allowed its technology to be used by, any customer other than a foreign
government. The fact that all of NSO’s conduct was, at a minimum,
“[]related to [its] official activities” suffices to uphold the district court’s
findings. Church of Scientology Case, 65 ILR 193, 198 (Fed. Supreme Ct.,
Fed. Rep. of Germany 1978).
Equally fundamentally, WhatsApp does not plead any claim that
can be divorced from the actual use of NSO’s technology—which
10WhatsApp points out that it did so in other filings after it opposed

NSO’s motion to dismiss. Ans. Br. 61. But that is an admission that it did
not raise its factual argument in opposition to the motion to dismiss,
which is what matters for preservation purposes.
36
WhatsApp does not deny was conducted entirely by or on behalf of foreign
governments. WhatsApp argues for a different conception of its claims,
Ans. Br. 57, but its arguments do not match its complaint. The complaint
does not, for example, allege any claim based on NSO’s marketing. And
it does not identify any harm WhatsApp suffered due to the creation or
testing of NSO’s technology. The only damages described in the
complaint are (1) the costs WhatsApp allegedly incurred from
investigating the use of NSO’s technology by its customers and (2) the
reputational harm WhatsApp allegedly suffered due to the use of NSO’s
technology by its customers. ER71–74 ¶¶ 57, 64, 73; Ans. Br. 9. The other
conduct WhatsApp cites in its brief did not cause either of those harms.
And because that conduct did not injure WhatsApp, it could not provide
a cause of action if WhatsApp had pleaded a claim divorced from the use
of NSO’s technology. NSO Br. 32.
At this point, however, NSO need not counter all of WhatsApp’s
(unpreserved) factual claims. Because the district court “did not adopt”
WhatsApp’s account of the facts, Ans. Br. 61, WhatsApp has the burden
to show that the court’s findings were clearly erroneous. It has not done so.
37
C. Conduct-Based Immunity Protects Foreign Agents

Sued in Their Individual Capacity
WhatsApp waits until the last five pages of its brief to address the
district court’s actual reason for denying NSO immunity: that, even
though NSO is a foreign agent being sued for its official acts, conduct-
based immunity cannot exist when a foreign agent is sued in its
individual capacity. Ans. Br. 62–66. WhatsApp’s decision to downplay
this argument—the only argument it preserved—makes sense. As NSO
showed, and as WhatsApp’s own amici agree, the argument is wrong.
NSO Br. 34–42; Scholars Amicus Br. 18–20.
Even assuming that conduct-based immunity applies only when a
lawsuit would “enforce a rule of law against the state,” Doğan, 932 F.3d
at 893–94, that does not require the judgment to run against the state. If
it did, conduct-based immunity would serve no purpose. NSO Br. 40–41.
In attempting to argue otherwise, WhatsApp proves NSO’s point. To
receive conduct-based immunity, WhatsApp claims, the defendant must
show that a foreign state is the “real party in interest.” Ans. Br. 62–65.
But if a state is the “real party in interest,” then the FSIA bars the suit.
Samantar, 560 U.S. at 325; Scholars Amicus Br. 18–19. Conduct-based
immunity, by definition, “arises” only “when the foreign government is
38
not the real party in interest.” Mutond Amicus Br. 9–10. 11 So if WhatsApp
were right, conduct-based immunity could never exist separate from
FSIA immunity. That would contradict Samantar, 560 U.S. at 325, and
open the floodgates for lawsuits against U.S. officials in foreign courts,
NSO Br. 41–42; Statement of Interest of the United States at 22 & n.20,
Matar v. Dichter, No. 05-cv-10270 (S.D.N.Y. Nov. 17, 2006).
WhatsApp, therefore, is mistaken. This Court, backed by a majority
of other decisions, has recognized that a lawsuit seeks to “enforce a rule
of law against the state” when it asks a court to hold unlawful a foreign
agent’s conduct on behalf of a foreign government. E.g., Mireskandari,
800 F. App’x at 519; Doğan, 932 F.3d at 894; Scholars Amicus Br. 18–19;
NSO Br. 38. The plaintiff in such a case, by targeting the agent’s actions,
targets the acts “of the state itself.” Underhill, 65 F. at 579.
That is what WhatsApp seeks to do here. NSO’s government
customers choose to carry out fundamental sovereign activities using
NSO’s technology. Governments must have the “flexibility” to make that
11 Although WhatsApp agrees that “Executive Branch practice [is]

critical to assessing claims of common-law sovereign immunity,” Ans. Br.
30, it ignores that its argument “is contrary to the long-stated views and
practice of the Executive Branch,” Mutond Amicus Br. 8; see id. at 8–14.
39
choice. Butters, 225 F.3d at 466. WhatsApp, in contrast, wants to make
it impossible for governments to use technology sold by NSO or any other
private contractor. It asks this Court to discourage “governments [from]
unduly relying on private companies,” Ans. Br. 50, and suggests that a
government cannot use software unless it does so “through its own
officers, form[s] a majority–state-owned company, or purchase[s] a
majority of NSO’s shares,” Ans. Br. 65. But a government’s choice of how
to conduct sovereign activities is just as sovereign as the activities
themselves. Broidy Cap. Mgmt., 982 F.3d at 594–95. WhatsApp may not
use the federal judiciary to control or restrict those sovereign decisions.
40
CONCLUSION
The Court should reverse the district court’s denial of NSO’s motion
to dismiss and hold that NSO is entitled to conduct-based immunity.
Respectfully submitted,
/s/ Joseph N. Akrotirianakis

Joseph N. Akrotirianakis
KING & SPALDING LLP
633 W. 5th Street
Suite 1600
Los Angeles, CA 90071
jakro@kslaw.com
Counsel for Appellants NSO

Group Tech. Ltd. et al.
February 5, 2021
41
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g), I certify that:
1. This document complies with the type-volume limitation of
Circuit Rule 32-2(b) because it contains 8,365 words, excluding the parts
exempted by Fed. R. App. P. 32(f).
2. This document complies with the typeface and type-style
requirements of Fed. R. App. P. 32(a)(5) because it has been prepared in
a proportionally spaced typeface using Century Schoolbook size 14-point
font with Microsoft Word.
Date: February 5, 2021

Counsel for Appellants

CERTIFICATE OF SERVICE
I hereby certify that on February 5, 2021, I caused the foregoing to
be electronically filed with the Clerk of the Court for the United States
Court of Appeals for the Ninth Circuit by using the appellate CM/ECF
system.
Participants in the case who are registered CM/ECF users will be
served by the appellate CM/ECF system.

Counsel for Appellant

Complaint of The Israeli Cyber Group NSO (Pegasus Spyware Producer) Against WhatsApp

Uploaded by

Copyright:

Available Formats

You might also like

Complaint of The Israeli Cyber Group NSO (Pegasus Spyware Producer) Against WhatsApp

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Complaint of The Israeli Cyber Group NSO (Pegasus Spyware Producer) Against WhatsApp

Uploaded by

Copyright:

Available Formats

Case: 20-16408, 02/05/2021, ID: 11995146, DktEntry: 65, Page 1 of 49

NSO GROUP TECHNOLOGIES LTD. ET AL.,

WHATSAPP INC. ET AL.,

On Appeal from the United States District Court

APPELLANTS’ REPLY BRIEF

Jeffrey S. Bucholtz Joseph N. Akrotirianakis

Matthew V.H. Noller

I. This Court has appellate jurisdiction because conduct-based

II. Conduct-based immunity protects private agents of foreign

A. WhatsApp forfeited its argument that conduct-based

B. Conduct-based immunity protects private entities .............. 13

1. The common law protects private foreign agents,

2. The FSIA does not exclude entities from conduct-

C. WhatsApp’s and its amici’s policy arguments are

III. The district court’s factual findings show that NSO is

A. WhatsApp forfeited any challenge to NSO’s evidence ......... 32

B. The district court correctly found that NSO is a foreign

C. Conduct-based immunity protects foreign agents sued in

Alicog v. Kingdom of Saudi Arabia,

Broidy Cap. Mgmt., LLC v. Qatar,

Butters v. Vance Int’l, Inc.,

Carmichael v. Kellogg, Brown & Root Servs., Inc.,

Dole Food Co. v. Patrickson,

Farhang v. Indian Inst. of Tech.,

Fed. Rep. of Germany v. Philipp,

Fields v. City of Chicago,

Gieg v. DDR, Inc.,

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

Jurisdictional Immunities of the State (Germany v. Italy),

Leite v. Crane Co.,

Meridian Textiles, Inc. v. Topson Downs of Cal., Inc.,

Moriah v. Bank of China Ltd.,

Norkunas v. Wynn Las Vegas, LLC,

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

Rep. of Mexico v. Hoffman,

St. Clair v. City of Chico,

Terenkian v. Rep. of Iraq,

Velasco v. Gov’t of Indonesia,

Vincent v. The Money Store,

WhatsApp Inc. v. NSO Grp. Tech. Ltd.,

15 U.S.C. § 1692a(6) ................................................................................. 25

1 Op. Att’y Gen. 81 (1797) .................................................................... 9, 10

Brief for the United States as Amicus Curiae, CACI Premier

Brief for the United States as Amicus Curiae, Mutond v.

Brief for the United States as Amicus Curiae, Samantar v.

National Intelligence, The U.S. Intelligence Community’s

Restatement (Second) of the Foreign Relations Law of the United States

Restatement (Third) of the Foreign Relations Law of the United States

Statement of Interest of the United States, Matar v. Dichter,

Ved P. Nanda et al., 1 Litigation of International Disputes in

WhatsApp’s brief confirms that it is asking this Court to dictate

how countries throughout the world may conduct important sovereign

express purpose of preventing foreign governments—and even the

United States—from purchasing surveillance software or using private

companies to assist their law-enforcement, intelligence, and national-

security operations. Longstanding principles of foreign sovereign

immunity prevent federal courts from granting such a request.