throbber
No. 21-1338
`In the Supreme Court of the United States
`
`NSO GROUP TECHNOLOGIES LIMITED, ET AL.,
`PETITIONERS
`
`
`
`v.
`
`WHATSAPP INC., ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
` BRIAN H. FLETCHER
`Acting Solicitor General
`Counsel of Record
`BRIAN M. BOYNTON
`Principal Deputy Assistant
`Attorney General
`EDWIN S. KNEEDLER
`Deputy Solicitor General
`ERICA L. ROSS
`Assistant to the Solicitor
`General
`SHARON SWINGLE
`LEWIS S. YELIN
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`RICHARD C. VISEK
`Acting Legal Adviser
`Department of State
`Washington, D.C. 20520
`
`
`
`
`

`

`QUESTION PRESENTED
`
`Whether a nongovernmental corporation that does
`not come within the definition of a “foreign state” under
`the Foreign Sovereign Immunities Act of 1976, 28
`U.S.C. 1603(a) and (b), may nevertheless be entitled to
`immunity from suit as a matter of federal common law
`based on conduct it claims to have engaged in as an
`agent of a foreign state.
`
`
`
`
`
`(I)
`
`

`

`TABLE OF CONTENTS
`
`Page
`
`Statement ...................................................................................... 1
`Discussion ...................................................................................... 6
`A. The court of appeals correctly held that NSO is not
`immune from suit .............................................................. 7
`B. Review by this Court is not warranted ......................... 14
`Conclusion ................................................................................... 22
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`
`
`American Elec. Power Co. v. Connecticut,
`564 U.S. 410 (2011).............................................................. 10
`Arrest Warrant of 11 Apr. 2000, In re
`(Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3,
`2002 WL 32912040, No. 121 (Feb. 14, 2002) ..................... 14
`Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003)............. 9
`Broidy Capital Mgmt. LLC v. Muzin:
`No. 19-cv-150, 2020 WL 1536350
`(D.D.C. Mar. 31, 2020), aff ’d,
`12 F.4th 789 (D.C. Cir. 2021) .................................... 18
`12 F.4th 789 (D.C. Cir. 2021) .............................. 14, 18, 19
`Butters v. Vance Int’l, Inc., 225 F.3d 462
`(4th Cir. 2000) ...................................................... 5, 19, 20, 21
`Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016) .......... 21
`Dutra Grp. v. Batterton, 139 S. Ct. 2275 (2019) ................. 12
`Greenspan v. Crosbie, No. 74-Civ.-4734,
`1976 WL 841 (S.D.N.Y. Nov. 23, 1976) ............................. 12
`Marx v. General Revenue Corp.,
`568 U.S. 371 (2013)............................................................ 8, 9
`Pablo Star Ltd. v. Welsh Gov’t, 961 F.3d 555
`(2d Cir. 2020), cert. denied, 141 S. Ct. 1069 (2021) ............ 6
`
`
`
`(III)
`
`

`

`IV
`
`Cases—Continued:
`
`Page
`
`Republic of Arg. v. NML Capital, Ltd.,
`573 U.S. 134 (2014)........................................................ 1, 2, 3
`Republic of Austria v. Altmann, 541 U.S. 677 (2004) ......... 6
`Republic of Mex. v. Hoffman, 324 U.S. 30 (1945) ................ 1
`Samantar v. Yousuf, 560 U.S. 305 (2010) .................. passim
`Verlinden B. V. v. Central Bank of Nigeria,
`461 U.S. 480 (1983)............................................................ 2, 6
`Yearsley v. W. A. Ross Constr. Co.,
`309 U.S. 18 (1940) ......................................................... 20, 21
`Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012),
`cert. denied, 571 U.S. 1156 (2014) ..................................... 21
`
`Treaty and statutes:
`United Nations Convention on Jurisdictional
`Immunities of States and Their Property, opened
`for signature Jan. 17, 2005, art. 2,
`¶ 1(b)(iii), U.N. Doc. A/RES/59/38 .................................... 10
`Foreign Sovereign Immunities Act of 1976,
`28 U.S.C. 1330, 1602 et seq. ..................................................... 1
`28 U.S.C. 1330(a) ............................................................... 2
`28 U.S.C. 1330(b) ............................................................... 2
`28 U.S.C. 1602 .................................................................... 7
`28 U.S.C. 1603(a) ..................................................... 2, 8, 17
`28 U.S.C. 1603(b) ....................................................... 2, 8, 9
`28 U.S.C. 1603(b)(1) ........................................................ 17
`28 U.S.C. 1603(b)(2) ........................................................ 17
`28 U.S.C. 1604 .................................................................... 2
`28 U.S.C. 1605-1607 ........................................................... 2
`28 U.S.C. 1605(a)(2) ..................................................... 6, 12
`28 U.S.C. 1606 .................................................................... 2
`28 U.S.C. 1609 .................................................................... 3
`
`
`
`

`

`V
`
`Statutes—Continued:
`
`Page
`
`28 U.S.C. 1610 .................................................................... 3
`28 U.S.C. 1610(a) ............................................................. 13
`28 U.S.C. 1610(b) ............................................................. 13
`28 U.S.C. 1611 .................................................................... 3
`
`Miscellaneous:
`
`Addition of Certain Entities to the Entity List,
`86 Fed. Reg. 60,759 (Nov. 4, 2021) .................................... 15
`122 Cong. Rec. 17,465 (1976) .................................................. 8
`H.R. Rep. No. 1487, 94th Cong., 2d Sess. (1976) .................. 8
`Press Release, U.S. Department of Commerce, Com-
`merce Adds NSO Group and Other Foreign Com-
`panies to Entity List for Malicious Cyber Activi-
`ties (Nov. 3, 2021), https://www.commerce.
`gov/news/press-releases/2021/11/commerce-adds-
`nso-group-and-other-foreign-companies-entity-list ....... 16
`Restatement (Second) of the Foreign Relations Law
`of the United States (1965) .................................................. 4
`S. Rep. No. 1310, 94th Cong., 2d Sess. (1976) ....................... 8
`
`
`
`
`
`
`
`
`
`

`

`In the Supreme Court of the United States
`
`
`
`
`
`No. 21-1338
`NSO GROUP TECHNOLOGIES LIMITED, ET AL.,
`PETITIONERS
`
`v.
`
`WHATSAPP INC., ET AL.
`
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
`
`
`
`This brief is submitted in response to the Court’s or-
`der inviting the Solicitor General to express the views
`of the United States. In the view of the United States,
`the petition for a writ of certiorari should be denied.
`
`STATEMENT
`1. For much of our Nation’s history, principles
`adopted by the Executive Branch, which were binding
`on the courts, determined the immunity of foreign
`states and their officials in civil suits in courts of the
`United States. See, e.g., Republic of Mex. v. Hoffman,
`324 U.S. 30, 34-36 (1945). In 1976, Congress replaced
`that “executive-driven * * * immunity regime,” Repub-
`lic of Arg. v. NML Capital, Ltd., 573 U.S. 134, 141
`(2014), with the Foreign Sovereign Immunities Act of
`1976 (FSIA), 28 U.S.C. 1330, 1602 et seq. The FSIA pro-
`vides a “comprehensive set of legal standards governing
`
`(1)
`
`

`

`2
`
`claims of immunity in every civil action against a foreign
`state.” Verlinden B. V. v. Central Bank of Nigeria, 461
`U.S. 480, 488 (1983); see, e.g., NML Capital, 573 U.S. at
`141-143.
`The FSIA defines a “foreign state” to include not
`only the state itself, but also “a political subdivision of a
`foreign state or an agency or instrumentality of a for-
`eign state.” 28 U.S.C. 1603(a). The statute defines an
`“agency or instrumentality of a foreign state” as “any
`entity—”
`
`(1) which is a separate legal person, corporate or
`otherwise, and
`
`(2) 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, and
`
`(3) which is neither a citizen of a State of the United
`States as defined in section 1332(c) and (e) of this ti-
`tle, nor created under the laws of any third country.
`
`28 U.S.C. 1603(b).
`The FSIA provides (subject to certain international
`agreements) that a “foreign state shall be immune”
`from suit, except as provided in Sections 1605 through
`1607. 28 U.S.C. 1604. If a suit comes within a statutory
`exception to foreign sovereign immunity, the FSIA pro-
`vides for subject-matter jurisdiction in federal district
`court, 28 U.S.C. 1330(a), as well as for personal jurisdic-
`tion over the foreign state if service has been made in
`accordance with the FSIA’s provisions, 28 U.S.C.
`1330(b). When a statutory exception to immunity ap-
`plies, “the foreign state shall be liable in the same man-
`ner and to the same extent as a private individual under
`like circumstances.” 28 U.S.C. 1606. The FSIA also
`
`
`
`

`

`3
`
`makes foreign-state-owned property in the United
`States “immune from attachment[,] arrest[,] and execu-
`tion,” 28 U.S.C. 1609, subject to exceptions that are
`“narrower” than those applicable to jurisdictional im-
`munity. NML Capital, 573 U.S. at 142; see 28 U.S.C.
`1610, 1611.
`In Samantar v. Yousuf, 560 U.S. 305 (2010), this
`Court held that the FSIA did not displace the common-
`law immunity regime that applies to individual officials
`of a foreign state. Id. at 323-325. Under that common-
`law framework, if the State Department informs a court
`that a foreign official is entitled to immunity in a partic-
`ular suit, “the district court surrender[s] its jurisdic-
`tion.” Id. at 311 (describing pre-FSIA practice). If the
`State Department does not participate in the litigation,
`the court determines whether the official is immune by
`applying principles articulated by the Executive
`Branch. Id. at 311-312 (same).
`2. Petitioner NSO Group Technologies Ltd. (NSO)
`is an Israeli company that produces surveillance tech-
`nology, which it licenses to governments and govern-
`ment agencies. Pet. App. 3. Respondent WhatsApp
`provides a communications service that allows its users
`to send encrypted communications. Id. at 4.
`In October 2019, WhatsApp sued NSO in the U.S.
`District Court for the Northern District of California,
`alleging that NSO had unlawfully used a spyware pro-
`gram called Pegasus to bypass WhatsApp’s encryption
`and to install malicious code on the devices of WhatsApp
`users, which allowed NSO’s customers to access infor-
`mation on the targeted WhatsApp users’ devices. Pet.
`App. 4; see id. at 23-24. WhatsApp asserted violations
`of federal and state law, and it sought injunctive relief
`and damages. Id. at 4.
`
`
`
`

`

`4
`
`NSO moved to dismiss the suit on immunity grounds.
`Pet. App. 32. The parties agreed that as a private for-
`eign entity, NSO did not “qualify as [a] foreign state[]”
`and could not “directly avail” itself of sovereign immun-
`ity under the FSIA. Ibid. But NSO contended that it
`was immune because it was a contractor of foreign gov-
`ernments and the suit involves conduct NSO allegedly
`undertook as an agent of those sovereigns. Ibid. The
`district court recognized that NSO’s argument impli-
`cated two different doctrines, ibid., and it determined
`that neither one applied, id. at 33-41.
`First, the district court held that NSO is not immune
`under the common-law doctrine of foreign official im-
`munity, which “potentially applies to the acts of foreign
`officials not covered by the FSIA.” Pet. App. 33 (citing
`Samantar, 560 U.S. at 311); see id. at 33-36. NSO ar-
`gued that “a foreign sovereign’s private agent[]” enjoys
`“conduct-based” immunity “when the agent acts on be-
`half of the state.” Id. at 34. The court determined that
`in the absence of a suggestion of immunity by the State
`Department, it should assess NSO’s contention under
`Section 66(f ) of the Restatement (Second) of the For-
`eign Relations Law of the United States (1965) (Second
`Restatement). Pet. App. 34. The court determined,
`however, that NSO would not be entitled to conduct-
`based immunity under the Second Restatement. Id. at
`35-36.1
`
`
`1 The Second Restatement provides that a foreign state’s im-
`munity extends to “any other public minister, official, or agent of
`the state with respect to acts performed in his official capacity if
`the effect of exercising jurisdiction would be to enforce a rule of
`law against the state.” Second Restatement § 66(f ) (emphasis
`omitted). This Court has not decided whether the Second Re-
`statement “correctly” articulates common-law official immunity
`
`
`

`

`5
`
`Second, the district court held that NSO is not enti-
`tled to “derivative sovereign immunity.” Pet. App. 37.
`The court explained that in Butters v. Vance Int’l, Inc.,
`225 F.3d 462 (2000), the Fourth Circuit relied on the
`FSIA to recognize such an immunity in a suit against a
`U.S. company acting within the scope of an agency re-
`lationship with a foreign sovereign. Id. at 466; see Pet.
`App. 37-38. But the district court declined to follow the
`Fourth Circuit because the Ninth Circuit has not ac-
`cepted a derivative foreign sovereign immunity doc-
`trine. Pet. App. 38-40. The district court further ex-
`plained that even if it were to apply Butters “as persua-
`sive authority,” NSO would not “meet its standard” be-
`cause NSO was “not incorporated or formed in the
`United States.” Id. at 40; see ibid. (“None of the other
`cases cited by [NSO] involve the application of deriva-
`tive sovereign immunity to foreign entities.”).
`3. The court of appeals affirmed on alternative
`grounds, but likewise rejected NSO’s argument that it
`is protected by a common-law immunity comparable to
`the immunity for foreign officials. Pet. App. 1-19. The
`court held that the FSIA “categorically forecloses ex-
`tending immunity to any entity that falls outside the
`FSIA’s broad definition of ‘foreign state.’ ” Id. at 2-3.
`The court stated that “the FSIA’s text, purpose, and
`history demonstrate that Congress displaced common-
`law sovereign immunity doctrine as it relates to enti-
`ties.” Id. at 3.
`
`
`principles. Samantar, 560 U.S. at 321 n.15. The United States, how-
`ever, has taken the position that “[r]eliance on the Second Restate-
`ment’s provisions on foreign-official immunity as a conclusive state-
`ment of current law is misplaced.” U.S. Amicus Br. at 14, Mutond
`v. Lewis, 141 S. Ct. 156 (2020) (No. 19-185).
`
`
`

`

`6
`
`The court of appeals reasoned that “[i]n creating a
`‘comprehensive set of legal standards governing claims
`of immunity’ * * * , Congress defined the types of for-
`eign entities—including, specifically, foreign corporate
`entities—that may claim immunity.” Pet. App. 14
`(quoting Verlinden B. V., 461 U.S. at 488) (footnote
`omitted). The court concluded that the statute’s specific
`delineation of the entities entitled to foreign sovereign
`immunity “forecloses immunity for any entity falling
`outside” the FSIA definition. Id. at 15.
`The court of appeals found it “odd * * * to think that
`by not including a category of entity within its definition
`of ‘foreign state,’ Congress intended for such entities to
`have the ability to seek immunity outside its ‘compre-
`hensive’ statutory scheme.” Pet. App. 14 (quoting Re-
`public of Austria v. Altmann, 541 U.S. 677, 699 (2004)).
`The court also observed that extending the conduct-
`based immunity for individual officials to foreign pri-
`vate entities would be incongruous because it could give
`them immunity for some conduct, such as certain com-
`mercial conduct, for which foreign state enterprises
`would be subject to suit. Id. at 16 (discussing Pablo Star
`Ltd. v. Welsh Gov’t, 961 F.3d 555, 560 (2d Cir. 2020), cert.
`denied, 141 S. Ct. 1069 (2021); 28 U.S.C. 1605(a)(2)). The
`court further contrasted what it regarded as Congress’s
`comprehensive regulation of immunity for entities with
`its silence as to foreign officials, emphasizing that this
`Court had relied on that silence in Samantar in conclud-
`ing that the FSIA did not displace the common-law im-
`munity of individual foreign officials. Id. at 12.
`
`DISCUSSION
`The court of appeals held that the FSIA entirely
`forecloses the adoption of any form of immunity under
`the common law for an entity that acted as an agent of
`
`
`
`

`

`7
`
`a foreign state. The United States is not prepared at
`this time to endorse that categorical holding, which is
`not necessary to resolve this case—and which would
`foreclose the Executive Branch from recognizing the
`propriety of an immunity in a particular context in the
`future even if such a recognition were found to be war-
`ranted, including by developments in international law
`or practice in foreign courts.
`Nonetheless, the court of appeals reached the cor-
`rect result in this case: Whether or not common-law
`immunity for an entity acting as the agent of a foreign
`state might be appropriate in some circumstances, NSO
`plainly is not entitled to immunity here. The State De-
`partment has not filed a suggestion of immunity in this
`case. There is no established practice—or even a single
`prior instance—of the State Department suggesting an
`immunity for a private entity acting as an agent of a for-
`eign state. And no foreign state has supported NSO’s
`claim to immunity; indeed, NSO has not even identified
`the states for which it claims to have acted as an agent.
`Nor does the court of appeals’ decision otherwise
`warrant review. It does not conflict with any decision
`of this Court. The question presented has not divided
`the courts of appeals—indeed, it has seldom arisen at
`all. And this unusual case would be a poor vehicle for
`considering that question in any event. The petition for
`a writ of certiorari should be denied.
`
`A. The Court Of Appeals Correctly Held That NSO Is Not
`Immune From Suit
`1. The FSIA provides that “[c]laims of foreign states
`
`to immunity should henceforth be decided by courts of
`the United States and of the States in conformity” with
`the statute. 28 U.S.C. 1602. The FSIA defines a “for-
`eign state” to include not just the “body politic” itself,
`
`
`
`

`

`8
`
`but also the state’s agencies and instrumentalities. Sa-
`mantar v. Yousuf, 560 U.S. 305, 314 (2010); see 28
`U.S.C. 1603(a). NSO acknowledges that it does not sat-
`isfy that statutory definition because it is neither an or-
`gan of a foreign state nor majority owned by a foreign
`state. Pet. App. 32; see 28 U.S.C. 1603(b). But NSO
`contends that it is nonetheless entitled to a common-law
`immunity, which it asserts would be analogous to the
`common-law immunity of foreign officials, for actions
`NSO allegedly took as an agent of foreign govern-
`ments.2
`The court of appeals rejected that contention, con-
`cluding that the FSIA’s specification of the entities (in-
`cluding corporations) that have a sufficient nexus to a
`foreign state to be covered by the statute’s conferral of
`sovereign immunity categorically forecloses recogni-
`tion of any common-law immunity for any other entities.
`The FSIA’s grant of immunity to entities in those spec-
`ified circumstances could be understood to create such
`a “negative implication” that immunity for entities is
`“unavailable in any other circumstances.” Marx v. Gen-
`eral Revenue Corp., 568 U.S. 371, 381 (2013). That neg-
`ative implication also finds some support in the FSIA’s
`legislative history: Both the House and Senate Reports
`reprinted a section-by-section analysis prepared by the
`Departments of State and Justice stating that “[a]n en-
`tity which does not fall within the definition of Sections
`1603(a) or (b) would not be entitled to sovereign immun-
`ity in any case before a Federal or State court.” H.R.
`Rep. No. 1487, 94th Cong., 2d Sess. 15 (1976); S. Rep.
`No. 1310, 94th Cong., 2d Sess. 15 (1976); 122 Cong. Rec.
`17,465, 17,466 (1976).
`
`
`2 The United States takes no position on whether NSO in fact
`acted as such an agent.
`
`
`
`

`

`9
`
`This Court has cautioned, however, that “[t]he force
`of any negative implication” to be drawn from a statute
`“depends on context.” Marx, 568 U.S. at 381. In par-
`ticular, the presumption that Congress’s inclusion of
`some circumstances implies the exclusion of others
`“does not apply ‘unless it is fair to suppose that Con-
`gress considered the unnamed possibility and meant to
`say no to it.’ ” Ibid. (quoting Barnhart v. Peabody Coal
`Co., 537 U.S. 149, 168 (2003)). And here, there is reason
`to question whether Congress, in enacting the FSIA,
`considered and intended to categorically foreclose any
`immunity for an entity that acts as an agent of a foreign
`state, but that does not meet the FSIA’s definition of an
`“agency or instrumentality” of a foreign state.
`The FSIA’s text and the legislative history cited
`above specifically address only entities that Congress
`determined should be covered by a foreign state’s sov-
`ereign immunity because they are so closely connected
`with the foreign state that they are deemed to be part
`of the state itself for these purposes. That is a status-
`based determination: An entity that satisfies the
`“agency or instrumentality” definition in 28 U.S.C.
`1603(b) is treated as a foreign state for purposes of im-
`munity from suit under the FSIA, regardless of the in-
`volvement (or non-involvement) of the foreign state it-
`self in the events giving rise to the suit.
`The question whether an entity should be treated as
`a foreign state for sovereign immunity purposes under
`the FSIA is distinct from the question whether a more
`limited form of conduct-based immunity could be recog-
`nized for specific acts undertaken on behalf of a foreign
`state by an entity that does not meet the statutory def-
`inition of an “agency or instrumentality.” And neither
`the court of appeals nor WhatsApp has pointed to any
`
`
`
`

`

`10
`
`specific textual or contextual evidence that Congress
`considered that specific issue in enacting the FSIA. Cf.
`American Elec. Power Co. v. Connecticut, 564 U.S. 410,
`424 (2011) (“The test for whether congressional legisla-
`tion excludes the declaration of federal common law” is
`“whether the statute ‘speaks directly to the question’ at
`issue.”) (brackets and citation omitted).
`2. Viewed in that light, the FSIA does not neces-
`sarily resolve the question whether or to what extent a
`conduct-based immunity could be recognized for such
`an entity under the common law—much as this Court
`has interpreted the FSIA to leave conduct-based im-
`munity for individual foreign officials to be governed by
`the pre-FSIA common-law regime. See Samantar, 560
`U.S. at 311-313. There is, however, a significant differ-
`ence between the immunity for individual officials ad-
`dressed in Samantar and any comparable immunity for
`entities: Before the FSIA, the State Department and
`the courts had recognized a conduct-based immunity for
`“individual foreign officials.” Id. at 312. In contrast,
`NSO has not identified—and the United States is not
`aware of—any history of State Department suggestions
`of immunity on behalf of private entities acting as
`agents of foreign states. Nor has any United States
`court “ever applied foreign official immunity to a for-
`eign private corporation under the common law.” Pet.
`App. 18.3
`
`
`3 NSO thus errs in asserting that the United States has already
`endorsed what NSO describes as an international “consensus” that
`private entities enjoy conduct-based immunity from suit when they
`“ ‘are entitled to perform and are actually performing acts in the ex-
`ercise of sovereign authority of the State.’ ” Pet. 7 (quoting United
`Nations Convention on Jurisdictional Immunities of States and
`Their Property (Immunities Convention), art. 2, ¶ 1(b)(iii), opened
`
`
`

`

`11
`
`Unlike in Samantar, therefore, the question here is
`not whether the FSIA should be read to displace a
`common-law immunity that was recognized at the time
`of the statute’s enactment. Instead, it is whether the
`FSIA should be read to foreclose the State Department
`(and the courts) from recognizing an immunity for an
`entity acting as an agent of a foreign state now or in the
`future. In deciding whether to recognize an immunity
`for an entity acting as the agent of a foreign state, the
`State Department could consider such factors as the na-
`ture of the conduct involved; the purpose and scope of
`the possible immunity; relevant practice in other na-
`tions; international-law principles; any assertion by the
`foreign state involved that the entity was its agent and
`should in its view be immune; and the foreign policy in-
`terests of the United States.
`In addition, Congress’s enactment of the FSIA
`means that before recognizing any conduct-based im-
`munity for entities, the State Department and then the
`courts would at a minimum need to carefully consider
`the statute’s text, structure, context, and purpose.
`
`
`for signature Jan. 17, 2005, U.N. Doc. RES/59/38). The Immunities
`Convention on which NSO relies has not entered into force, and the
`United States has neither signed nor ratified it. And contrary to
`NSO’s broad assertion (Pet. 7), in the Statement of Interest NSO
`cites, the United States stated only that the Immunities Convention
`is “consistent with customary international law to the extent that it
`clothes individual officials with the immunity of the state” for acts
`taken in an official capacity. U.S. Statement of Interest at 21, Matar
`v. Dichter, 500 F. Supp. 2d 284 (S.D.N.Y. 2007) (No. 05-10270) (em-
`phasis added). In addition, although a few foreign courts have ad-
`dressed whether a private entity acting as an agent of the state can
`benefit from immunity, there is not a well-developed international
`practice on affording immunity to private entities acting as agents
`of a foreign state.
`
`
`
`

`

`12
`
`Even where Congress has not completely displaced the
`common law in a particular area, its “legislative enact-
`ments” may supply instructive “policy guidance” for
`any future consideration of an immunity. Dutra Grp. v.
`Batterton, 139 S. Ct. 2275, 2278 (2019) (citation omit-
`ted).
`Those considerations—including the implications to
`be drawn from the FSIA—may not lend themselves to
`a uniform answer to the question whether entities that
`do not satisfy the FSIA’s definition of an agency or in-
`strumentality of a foreign state can nonetheless claim a
`conduct-based immunity similar to that available to in-
`dividual foreign officials. For example, the State De-
`partment has recognized the immunity of foreign offi-
`cials in suits involving commercial acts for which a for-
`eign state would not be immune under the FSIA.
`Greenspan v. Crosbie, No. 74-Civ.-4734, 1976 WL 841,
`at *1-*2 (S.D.N.Y. Nov. 23, 1976) (pre-FSIA suit); see
`28 U.S.C. 1605(a)(2). If a private entity (such as one in
`which the state owned only 49% of the shares) were sim-
`ilarly entitled to conduct-based immunity when acting
`as an agent for a foreign state in a commercial transac-
`tion, it would enjoy an immunity Congress chose to deny
`entities that are agencies and instrumentalities of the
`state itself. Such a result could create an incentive for
`foreign states to attempt to use private entities to un-
`dertake activities for which their agencies or instru-
`mentalities would be subject to suit under the FSIA. 4
`
`
`4 In some litigation, it might be possible to substitute the foreign
`state for the private entity, or to deem the suit as being against the
`foreign state. Cf. Samantar, 560 U.S. at 325 (“[I]t may be the case
`that some actions against an official in his official capacity should be
`treated as actions against the foreign state itself, as the state is the
`real party in interest.”). But other issues might then arise. The
`
`
`

`

`13
`
`In contrast, a case in which a private entity acted as
`the agent of a foreign state in connection with the exer-
`cise of certain core sovereign authority may not raise
`similar issues in relation to the FSIA. And in the view
`of the United States, the FSIA need not be read to en-
`tirely foreclose the recognition of such an immunity in
`the future if the Executive—after considering the na-
`ture of the entity and its role as an agent and other rel-
`evant considerations such as those identified above—
`determined that a suggestion of immunity was appro-
`priate in a particular context or circumstance.
`3. There is no occasion in this case, however, for the
`Court to consider whether a private corporation or
`other entity acting as an agent of a foreign state could
`be protected by some form of immunity outside the
`FSIA in certain circumstances, because the prerequi-
`sites for any such immunity are not present here. Un-
`der the common law, courts surrendered their jurisdic-
`tion when the State Department filed a suggestion of
`immunity, or the courts applied the established princi-
`ples accepted by the State Department if the United
`States did not participate in the case. See Samantar,
`560 U.S. at 311-312. Here, however, the State Depart-
`ment has not filed a suggestion of immunity for NSO,
`and there are no established principles accepted by the
`State Department affirmatively recognizing a conduct-
`
`
`FSIA permits execution against a foreign state’s assets in more lim-
`ited circumstances than it does against the assets of a foreign state’s
`agencies or instrumentalities. Compare 28 U.S.C. 1610(a), with 28
`U.S.C. 1610(b). Thus, the remedies available to a prevailing party
`in a suit against a private entity in such circumstances would be sig-
`nificantly circumscribed as compared to those available in a suit
`against a foreign state agency or instrumentality.
`
`
`

`

`14
`
`based immunity for a private entity acting as an agent
`of a foreign state.
`In addition, whether a foreign government has re-
`quested that the United States recognize a defendant’s
`immunity can be an important consideration for the Ex-
`ecutive in determining whether a suggestion of immun-
`ity would be appropriate. See Broidy Capital Mgmt.
`LLC v. Muzin, 12 F.4th 789, 800 (D.C. Cir. 2021); cf. In
`re Arrest Warrant of 11 Apr. 2000 (Dem. Rep. Congo v.
`Belg.), 2002 I.C.J. 3, 2002 WL 32912040, at *25-*26, No.
`121 (Feb. 14, 2002). But despite NSO’s claim to have
`acted on behalf of multiple foreign states, no foreign
`government has requested that the State Department
`recognize an immunity of NSO from this suit on the ra-
`tionale that NSO was acting as its agent, or on any other
`basis.
`
`B. Review By This Court Is Not Warranted
`The decision below does not warrant this Court’s re-
`view for multiple independent reasons.
`1. First, this case would be an exceptionally poor ve-
`hicle in which to consider the question NSO seeks to
`raise. As just explained, the prerequisites for recogni-
`tion of a common-law conduct-based immunity are not
`present in this case, whether or not recognition of such
`an immunity for a private entity that allegedly acted as
`the agent of a foreign government could ever be con-
`sistent with the FSIA. In the government’s view, the
`Court should take up that important and difficult ques-
`tion only if and when, at a minimum, the United States
`has supported a claim of immunity on behalf of an entity
`and articulated the principles on which it rests. That
`would allow the Court to address the issue based on the
`considered judgment of the Executive Branch that
`recognition of an immunity would be appropriate—
`
`
`
`

`

`15
`
`rather than by asking in the abstract whether the FSIA
`should be read to categorically displace any such
`common-law immunity, without regard to its contours
`or justification.
`At a minimum, the Court should not take up the
`question presented here, in a case where neither the
`United States nor any foreign sovereign has supported
`NSO’s claim to immunity; where NSO itself has not
`even identified the foreign sovereigns for which it
`claims to have acted as an agent; and where the record
`thus includes scant details about the nature and con-
`tours of those purported agency relationships.
`We note as well that while the appeal in this case was
`pending, the United States added NSO to the “Entity
`List,” a list of “entities for which there is reasonable
`cause to believe, based on specific and articulable facts,
`that the entities have been involved, are involved, or
`pose a significant risk of being or becoming involved in
`activities contrary to the national security or foreign
`policy interests of the United States.”

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