NSO blacklisting: It is time for the US to end its Cold War ways

On November 3, the United States Department of Commerce announced it was blacklisting the Israeli technology firm, NSO Group. The decision to add the company to a list of entities engaging in activities contrary to US national security or foreign policy interests was momentous.

In its press release on the subject, the commerce department noted: “[there is] evidence that these entities developed and supplied spyware to foreign governments that used these tools to maliciously target government officials, journalists, businesspeople, activists, academics, and embassy workers.  These tools have also enabled foreign governments to conduct transnational repression, which is the practice of authoritarian governments targeting dissidents, journalists and activists outside of their sovereign borders to silence dissent. Such practices threaten the rules-based international order.”

Yet, the Israeli government and NSO decided to treat the matter as a public relations problem and not as a human rights crisis and tried to downplay it. The company first tried to look confident and published a statement that it “feels perplexed by the decision”. Then it sent a “secret” letter to the Israeli government, which got “leaked”, asking for assistance to get the US government to cancel the blacklisting and help save hundreds of Israeli jobs.

The Israeli government for its part also tried to engage in some damage control. On November 25, Israeli media widely reported on a supposed decision by the defence ministry to stop selling cybertechnology to some 65 countries, including the United Arab Emirates, Saudi Arabia, Morocco, etc. Subsequent scrutiny of these reports, however, revealed that this is not the case; the ministry has simply added one more bureaucratic step – the need for permission to start export negotiations with these countries – to the otherwise unobstructed process.

None of these damage control attempts seemed to have helped. Moody’s downgraded NSO and warned it is at risk of default, while US tech giant Apple pushed forward with a lawsuit against the company for targeting iPhone users.

Indeed, the US blacklisting could be a game changer, the beginning of a strong US response to the challenge that the thriving surveillance systems industry poses to civil society and democracy movements around the world.

Organisations like Amnesty International, Citizen Lab, Forbidden Stories, Access Now, and many journalists and activists around the world, from India to Mexico and Hungary, to Israel, have long been ringing alarm bells about NSO and other spyware companies, hoping that officials in the US and elsewhere would listen when they make policy decisions.

For doing so, the critics have been accused by NSO and its supporters of being liars and even part of an anti-Israel and anti-Semitic campaign. There has also been an ever-present fear of being sued for defamation by a highly influential company with vast financial resources able to pay expensive lawyers.

For us, Israeli activists, there have been also the obstacle of convincing the Israeli public of the danger of surveillance systems, since many Israelis approve of 24/7 Israeli surveillance of the Palestinians living under a repressive military regime in the occupied territories.

While the US blacklisting of NSO is a victory for civil society, it is also a mark of disgrace for the Israeli parliament and judiciary which has refused to rein in surveillance companies or monitor the defence ministry’s dealings with them.

For decades the Knesset avoided having any real discussion about defence export licences to countries in conflict or under repressive regimes. It did little to respond to the refusal of the defence ministry to share details of surveillance technology exports.

In 2015, together with MK Tamar Zandberg (the current minister of environmental protection), I co-wrote a proposed amendment to the 2007 Law for Oversight of Defence Exports, which restricts defence exports only to countries under a United Nations embargo. We based the text on the US “Leahy law”, which prohibits the provision of US military assistance and exports to governments and security forces that violate human rights with impunity.

The Israeli defence and foreign affairs ministries opposed synchronising Israeli legislation with American law. Subsequently, the Knesset failed to pass the proposal.

The repeated attempts of a group of Israeli human rights activists, which I was part of, to expose the defence ministry’s complicity in crimes against humanity and genocide in other countries, and stop export licences to conflict zones and non-democratic regimes through the Israeli judicial system were also largely unsuccessful. In fact, we faced constant institutional gaslighting.

The judges and the state representative regularly tried to make us believe that we were crazy or naive, and that if we were not already part of an anti-Israeli movement, we were being manipulated into unknowingly becoming part of one. In one hearing about arms shipments to a bloody civil war, a Supreme Court judge asked who was financing us and who was truly behind the petition; in another, an administrative court judge wanted clarification that we are not part of the Boycott, Divestment, Sanctions movement.

Despite the humiliating and frustrating court hearings, we kept pressing on with petitions because this was a way to express solidarity with the growing list of victims of Israeli surveillance technologies and arms, and because we still had a flicker of hope that we would eventually succeed. We had our rare victories, such as when the defence ministry decided to stop all defence exports to Myanmar in late 2017.

But we also had our demoralising defeats. For example, in June, the Supreme Court dismissed a petition that demanded to cancel the export licence of Cellebrite’s system to Russia, which was used to hack mobile phones of activists associated with opposition leader Alexey Navalny. The judges used this opportunity to block future petitions by ruling that the court system in Israel does not have jurisdiction to oversee defence exports policy.

Without cooperation from the Knesset and the courts, it has been very difficult or even impossible to push for domestic policy change within Israel. And this is why the decision by the US Department of Commerce is so important. It puts much needed external pressure on the Israeli authorities, which were probably quite shocked by the blacklisting.

After all, they have been quite used to non-interference by the US in their defence export policies. Probably the only major clash between the US and the Israeli governments on this subject took place in the late 1990s, when the latter wanted to supply a Phalcon surveillance aircraft to China. An agreement was eventually reached, which prohibited the supply of certain Israeli-made military equipment to Beijing and imposed a requirement for prior US approval for other defence exports.

For everything else, the US has been mostly turning a blind eye. This policy goes back to the Cold War, when successive US administrations were happy with Israel doing Washington’s dirty work and supplying military technology to murderous dictatorial regimes which faced US sanctions or aid cuts.

For example, the Israeli government and the Reagan administration famously collaborated in the Iran-Contra affair, which saw the secret Israeli sales of weapons to embargoed Iran. Documents declassified in recent years show that senior US officials knew about Israel providing training and arms shipments to dictatorial regimes, such as the military juntas in Argentina and Chile in the 1970s and 1980s, but did not really try to stop them.

After the Cold War was over, US inaction on problematic Israeli defence exports no longer made sense, especially in cases when they seemed to serve the interests of China and Russia or various dictators.

One has to wonder why the Clinton administration did not stop the arms shipments from Israel to Serb forces during the war in Bosnia. Why was Israel allowed to continue providing arms, surveillance systems and training to Myanmar’s military until after a full genocide started against the Rohingya people? Why was Israel able to sell the Cellebrite hacking system to Venezuela, Belarus, Russia and China? And why was Israel continuing to arm the illegal private security unit of Ugandan President Yoweri Museveni while his regime clashed with the US and accused its embassy of interfering in the local election?

The big question now is whether the US will stop at NSO or whether it will undertake a major policy change and move away from its Cold War methods and mentality. If NSO survives the blacklisting and Washington fails to expand its action against uncontrollable spyware exports, then this would only strengthen the feeling of impunity within the industry and the arrogance of the Israeli defence ministry, whose workers usually seek to integrate into the intelligence industry after retiring from public service.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.