Foreign sovereign immunity does not extend to non-state entities regardless of what those entity’s government customers do with their technology or services




Foreign Sovereign Immunity Only Applies to Organs of a Foreign State or Corporations Owned by a Foreign State In WhatsApp Inc. v. NSO Grp. Techs., 20-16408 (9th Cir. Nov. 8, 2021), the defendant, a private Israeli corporation, appealed the district court’s order denying their motion to dismiss based on foreign sovereign immunity. In the underlying suit, the plaintiffs alleged that the defendants violated federal and state law when they intentionally accessed WhatsApp servers without authorization in order to figure out how to place a program called Pegasus on WhatsApp users’ devices without detection. Pegasus is a program used by law enforcement and intelligence agencies to remotely and covertly extract intelligence from mobile devices. The defendant argued that even if the plaintiffs’ allegations were true, the defendants were acting as an agent of a foreign state and was entitled to “conduct-based immunity,” a common law doctrine that protects foreign officials acting in their official capacity. The Foreign Sovereign Immunity Act Occupies the Field of Foreign Sovereign Immunity as Applied to Entities The Foreign Sovereign Immunity Act (“FSIA”) establishes sovereign immunity for foreign states except as provided by the Act. The United States Court of Appeals for the Ninth Circuit found that the FSIA occupies the entire field regarding the application of foreign sovereign immunity to entities and it is inappropriate for courts to consider common-law principles in such cases. If an entity does not fall within the FSIA’s definition of “foreign state,” the entity cannot claim foreign sovereign immunity under the common law. Foreign Sovereign Immunity Does Not Extend to Private Entities The FSIA defines “foreign state” as “any entity [that] is a separate legal person, corporate or otherwise and . . . 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.” 28 U.S.C. § 1603(b). To claim sovereign immunity, an entity must be a sovereign or have a sufficient relationship to a sovereign as defined by the FSIA. Private entities, such as the defendant, do not qualify as a “foreign state” under the FSIA and thus are not entitled to sovereign immunity. Disposition The Court held that the FSIA occupies the field of foreign sovereign immunity as applied to entities and forecloses extending immunity to any entity like the defendant that falls outside the FSIA’s definition of “foreign state.” The Court affirmed the district court’s order denying the defendant’s summary judgment motion.

April 14, 2022
WhatsApp Inc. v. NSO Grp. Techs., 20-16408 (9th Cir. Nov. 8, 2021)
Federal Courts (9th Circuit)