Court shuts doors on Amnesty bid to revoke NSO license

The case has huge implications for national security and human rights.

Tel Aviv District Court discusses Amnesty International’s request to revoke NSO’s export license, February 2020 (photo credit: YONAH JEREMY BOB)
Tel Aviv District Court discusses Amnesty International’s request to revoke NSO’s export license, February 2020
(photo credit: YONAH JEREMY BOB)
A court shut the doors on Thursday to Amnesty International’s request to revoke NSO’s export license, in a case with massive counter-terror and human rights implications.
Tel Aviv District Court Judge Rachel Barkai did allow 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 even 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 that 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.
A couple dozen government officials and lawyers from the Defense Ministry were present, showing the huge importance that the government places on keeping the case classified.
The large presence of government officials, and the fact that the closed-door hearings ran for most of the day, also suggests that the state went into significant detail before the court about its and NSO’s activities.
While Mack could not reveal what happened behind closed doors, and even he was not present for aspects of the state’s presentation, he told The Jerusalem Post that he was taken aback by how strident the Defense Ministry and NSO were.
He said that it was highly problematic that the ministry was silent when NSO attacked Amnesty’s integrity, and the ministry has failed to make a clear statement that it will not let NSO spy on human rights officials.
This case was filed after Amnesty claimed that NSO’s software was used to spy on its officials by a foreign client of NSO.
Mack also criticized NSO for not having its top officials, like CEO Shalev Hulio, present.
Amnesty representative Gil Naveh said that the decision to close off the hearing, as well as NSO’s selling of its powerful offensive cyber operations, was “harmful to Israeli democracy. It is outrageous that we are being gagged.”
On the other hand, even the little bit of the hearing which was public was not a given.
After extensive delays dating back to May, Barkai finally forced the state and NSO to show up in open court, at least for a short period.
The primary allegations against NSO are that its Pegasus software has been used by non-democratic governments to spy on journalists and dissidents, and that the Defense Ministry has failed to carry out proper oversight.
In a statement on Wednesday, the Defense Ministry did not comment directly on whether it had sought a dismissal or gag order, but said its supervision of defense exports was “subject to constant scrutiny and periodic assessments.”
The ministry added that it does not comment on specific licenses.
University of Toronto’s Citizen Lab has linked NSO’s cellphone hacking software, Pegasus, to tracking human rights activists in Saudi Arabia, Mexico and the United Arab Emirates.
In October, Facebook, through its WhatsApp subsidiary, sued NSO in a US federal court in California, alleging it illegally hacked the phones of around 1,400 users across four continents.
The massive alleged hacking included political dissidents, journalists, diplomats and even government officials.
NSO has said, and the Wall Street Journal has reported, that since the WhatsApp lawsuit, key counter-terror probes in Europe tracking ISIS agents have gone dark.
For example, a European counter-terror official told the Wall Street Journal that as soon as the case broke and WhatsApp sent out a warning, an ISIS agent stopped using the cellphone from which they had gained significant intelligence.
In a series of meetings with top NSO officials, The Jerusalem Post reported that NSO not only denies the allegations against it and presents itself as a huge and helpful tool in the fight against terror and organized crime, but that it also has support from many EU countries.
According to NSO sources, many EU countries are unconcerned by either the Israeli lawsuit or the US Facebook lawsuit, and are mostly just concerned that they continue to have NSO’s services to fight terror.
In addition, NSO sources implied that the highest levels in Israel view its company as a form of diplomacy, since it can provide services to Middle Eastern countries for fighting terror, which then brings those countries closer to Israel.
Mack said that regardless of whether NSO was important to fight terror or not, there are rules of the game even for government intelligence agencies which must bind NSO.
He warned that many countries have started to define human rights activists as terrorists simply to further suppress dissent, and that Israel and NSO should not be lending tools to accomplish this.
NSO also committed last year to UN guidelines related to observing human rights.
Amnesty says that the UN guidelines are a fig leaf, and that nothing has changed. It says that until NSO reveals more about abuses from its clients, which NSO admits occurred in at least three cases, it cannot be trusted.
The Defense Ministry has said that its licensing assessments take into account the product and the country it will be used in, protecting human rights and other foreign affairs considerations.