Lower Court Erred on Subject-Matter Jurisdiction Ruling, Says Khashoggi's Widow's Brief

The U.S. District Court for Virginia’s Oct. 26 ruling dismissing Hanan Elatr Khashoggi’s privacy case against NSO Group Technologies and Q Cyber Technologies for lack of subject-matter jurisdiction was “in error,” said Khashoggi's opening brief (docket 23-2234) in the 4th U.S. Circuit Court of Appeals Monday.

Khashoggi’s complaint alleges NSO and Q Cyber infiltrated her phones with spyware that the Saudi and United Arab Emirates governments used to track the movements of her husband, Saudi journalist and human rights activist Jamal Khashoggi, before his October 2018 murder at the Saudi consulate in Istanbul (see 2311220024).

Khashoggi alleges the defendants, both foreign companies, violated federal and Virginia statutes and common law by intentionally accessing her devices and obtaining her information without authorization. The defendants moved to dismiss for lack of subject-matter jurisdiction based on derivative sovereign immunity and lack of personal jurisdiction. The district court rejected sovereign immunity, but granted dismissal for lack of personal jurisdiction, holding that the plaintiff didn’t adequately allege that the defendants committed the acts in Virginia.

But Khashoggi alleges the defendants did act in Virginia by accessing her devices there, obtaining her communications and data, and rerouting the information through their “anonymizing network and server to their client.” The unlawful capture of electronic information occurs where a party accesses and reroutes it, said the brief, “which here was on Hanan’s devices in Virginia.”

In holding that the defendants didn’t act in Virginia, “the district court ignored Hanan’s allegations and evidence placing" both her and the defendants in Virginia when they "accessed and rerouted the information from her devices,” said the brief. “A spyware operator’s unauthorized interception is tortious conduct that occurs at the point of access,” the brief said, citing Luis v. Zang.

The errors involving the defendants’ acts in Virginia “pervaded the district court’s personal jurisdiction analysis,” the brief said. In holding that Khashoggi’s claims didn’t relate to the defendants’ forum contacts, the court again held that the plaintiff didn’t adequately allege she was in Virginia or that NSO Group and Q Cyber Technologies surveilled her phones, it said.

Also, the brief said, in holding that exercise of personal jurisdiction was constitutionally unreasonable, the court “weighed in the balance 'plaintiff’s inability to plausibly demonstrate that NSO Group directed its alleged conduct at her in Virginia,'” the brief said. The errors “compel reversal,” it said.