Court rules for NSO, Defense Ministry in Amnesty lawsuit
Judge declines to revoke export license, but does not explain.
By YONAH JEREMY BOBTel Aviv District Court discusses Amnesty International’s request to revoke NSO’s export license, February 2020(photo credit: YONAH JEREMY BOB)
The Tel Aviv District Court on Monday ruled in favor of the Defense Ministry and NSO Group and against Amnesty International’s lawsuit to cancel the cyber powerhouse’s export license.Amnesty petitioned the court to cancel the export license, claiming that NSO violates human rights, including that its technology was used by its clients to hack some Amnesty employees’ cellphones.NSO Group is known worldwide for developing Pegasus software, which some governments and intelligence agencies use to hack the cellphones of terrorists, drug rings and pedophiles.However, Amnesty and other human-rights groups say it has a darker side and also sells to governments that abuse human rights.The Defense Ministry came to NSO’s defense early on and convinced the court to close all but the early minutes of the first hearing of the lawsuit to the public due to national security considerations.Even Amnesty’s lawyers did not get to hear most of NSO’s and the Defense Ministry’s arguments.The court said the Defense Ministry’s process for vetting NSO was serious and appropriate and took into account a range of business, diplomacy and technology considerations.Further, the court said the ministry maintained heavy oversight even after issuing the license, which would be sufficient for it to know if it needed to revoke the export license due to any harm to human rights.Despite these conclusions, the court did not share any of its factual basis for these findings as is standard in court rulings.Rather, it appears that the court allowed publishing only its bottom-line conclusion due to perceived security considerations.
This leaves Amnesty in a difficult spot because it does not necessarily know why the court ruled against it or how the court came to reject some of the serious evidence Amnesty assembled that NSO clients allegedly hacked some of its employees’ cellphones.Amnesty International Israel director Molly Malekar said: “As a citizen of Israel and as a petitioner, the verdict reveals the court system’s impotence to call the Ministry of Defense for accountability and transparency, which is required in every law-abiding state.”“The court accepts time and again the ministry’s version, without it being examined, ignoring all the claims, evidence and testimonies that constitute a substantial evidence base,” she added.Amnesty’s statement continued: “At no point did the state claim that it opened an investigation into the body of the allegations, even though the NSO group claimed it had a list of clients at the specific time.”Further, the human-rights group said, “The Ministry of Defense merely claimed – and did not prove – that it was ‘rigorously, closely, and sensitively following security export licenses,’ and according to the judge – ‘especially when it comes to human-rights violations.’”In addition, the statement said, “This is a puzzling argument that ignores the allegations and evidence to the opposite around the world, both in the context of NSO and in the context of Israeli security exports as a whole.”“The court requires the civil society to present the specific export license, which is subject to comprehensive secrecy, which has become a burden that only the court can bear, which is precisely why we asked the court that it will resolve the issue at this specific level of accuracy,” it said.Moreover, Amnesty stated: “When the Ministry of Defense gives this company a formal seal, it makes all the citizens of Israel complicit in the persecution of individuals from Saudi Arabia to Mexico, from Morocco to India, human-rights activists who are bravely opposed to oppression of individual freedoms and human rights.”The group concluded, urging “the public to support the initiative to change the Israeli Security Export Control Law” so that it becomes more similar to stricter oversight in Europe and the US.NSO Group responded that it, "welcomes the court’s rejection of Amnesty International’s petition and the finding that their allegations did not have an evidentiary basis."It continued, "The judgement is irrefutable evidence that the regulatory framework in which we operate is of the highest international standard. Combined with NSO’s industry-leading governance frameworks, it underpins the fact that we are a global leader in commitment to the proper use of technology and respect for human rights."Next, NSO said, "Advanced encryption by terrorists and criminals necessitates the kind of legal and proportionate response that NSO provides to authorised and verified government agencies."Further, it added, "We help governments achieve this while ensuring that our technology is only used to fight terror and serious crime, and protect public safety.""Our detractors, who have made baseless accusations to fit their own agendas, have no answer to the security challenges of the 21st century. Now that the court’s decision has shown that our industry is sufficiently regulated, the focus should turn to what answer those who seek to criticise NSO have to the abuse of encryption by nefarious groups,” it added.In January, the court had held a mostly closed door hearing in the case with massive counterterrorism and human-rights implications.Tel Aviv District Court Judge Rachel Barkai had allowed Amnesty lawyer Itai Mack to make some arguments before a huge media presence about the importance of keeping part of the case open to the public.At first, Barkai suggested allowing all of Mack’s arguments to be open to the media and only closing the hearing for the Defense Ministry’s arguments in favor of maintaining NSO’s license.However, after state lawyer Sara Bilu said this would make it look like the government was admitting to Amnesty’s accusations of human-rights violations against the Defense Ministry and against NSO, Barkai abruptly reversed herself.That seems to have been the turning point, with Barkai not only denying Amnesty’s lawsuit, but also ruling that it had failed to prove any human-rights violation or hacking of its employee’s cellphone by NSO.
