588 F.

2d 319
47 A.L.R.Fed. 259, 201 U.S.P.Q. 623

Norman BIRNBAUM, B. Leonard Avery and Mary Rule

MacMillen,
Plaintiffs- Appellees,
v.
UNITED STATES of America, Defendant-Appellant.
Nos. 935, 976, 977, Dockets 77-6175, 77-6181, 77-6183.

United States Court of Appeals,

Second Circuit.
Argued May 3, 1978.
Decided Nov. 9, 1978.

John M. Rogers, Atty., Dept. of Justice, Washington, D. C. (Barbara Allen

Babcock, Asst. Atty. Gen., Leonard Schaitman, Atty., Dept. of Justice,
Washington, D. C., and David G. Trager, U. S. Atty., E. D. N. Y.,
Brooklyn, N. Y., of counsel), for defendant-appellant.
Michael Krinsky, New York City (Herbert Jordan, Bill of Rights
Foundation, Rabinowitz, Boudin & Standard, and K. Randlett Walster,
New York City, on the brief), for plaintiff-appellee Birnbaum.
Melvin L. Wulf, New York City (Clark, Wulf & Levine, New York City,
Burt Neuborne, NYU School of Law, New York City, Richard W. Zacks,
Providence, R. I., and Joel M. Gora, American Civil Liberties Union
Foundation, New York City, of counsel), for plaintiffs-appellees Avery
and MacMillen.
Before MOORE, OAKES and GURFEIN, Circuit Judges.
GURFEIN, Circuit Judge:

For twenty years (from approximately 1953 to 1973), the Central Intelligence
Agency ("CIA") covertly opened first class mail which American citizens sent
to, or received from, the Soviet Union. Letters destined for the U.S.S.R., or

originating there, were selected by agents in New York, photocopied, and then
returned to postal authorities for ultimate delivery. Selection criteria were
employed, but some letters were chosen at random. During the existence of the
project over 215,000 pieces of mail were inspected and copied in this fashion.1
2

In 1958, the Federal Bureau of Investigation ("FBI") was informed of the

existence of the CIA's East Coast mail project, known by the cryptonyms
HTLINGUAL and SRPOINTER, and the CIA offered to share the project's
"take" with the FBI. FBI Director Hoover gave his approval, and the FBI
provided the CIA with the names and categories of persons or organizations in
which it had an "internal security" interest. Such lists were used as additional
guides by the CIA in making selections from the United States-Soviet mail that
passed through the CIA check point. D.J. Report at 13. The CIA released
photocopies of some letters to the FBI in aid of that agency's mission with
respect to suspected domestic subversion.

Norman Birnbaum, Mary Rule MacMillen and B. Leonard Avery, whose mail
was opened and copied, separately sued the United States for compensatory
damages, invoking the exclusive jurisdiction conferred on the district courts (28
U.S.C. 1346(b)) under the Federal Tort Claims Act, 28 U.S.C. 2671-2680
("the Act").2 In the cases of Birnbaum and MacMillen, the opened letters had
been intercepted en route to the U.S.S.R., in 1970 and 1973, respectively.
Avery's letter had been opened in 1968, while arriving in the United States
from the Soviet Union.3

The three cases were consolidated in the District Court for the Eastern District
of New York (Hon. Jack B. Weinstein, Judge). Although an advisory jury was
empanelled, the District Judge, as required, tried the case himself, 28 U.S.C.
2402, and found that the United States was liable to each plaintiff individually
for damages in the amount of $1,000. The United States was also required to
send a letter of apology to each plaintiff.4 436 F.Supp. 967, 989-90 (1977).
From this judgment the United States appeals.

* Before the Act was passed in 1946, the United States, as sovereign, possessed
complete immunity against suit for torts committed by its agents and
employees. Feres v. United States, 340 U.S. 135, 139-40, 71 S.Ct. 153, 95
L.Ed. 152 (1950); See Tempel v. United States, 248 U.S. 121, 131, 39 S.Ct. 56,
63 L.Ed. 162 (1918); Hill v. United States, 149 U.S. 593, 598, 13 S.Ct. 1011,
37 L.Ed. 862 (1893). The only redress was by private bill in the Congress. The
purpose of the Act was generally to waive the sovereign immunity of the
United States for torts of its employees committed within the scope of their
employment, if such torts committed in the employ of a private person would

have given rise to liability under state law, 28 U.S.C. 1346(b). Thus, recovery
under the Act could only be predicated upon such a state tort cause of action.5
Moreover, in groping for a formula that would eliminate the nuisance of private
bills and yet interfere only minimally with government functions, Congress
created statutory exceptions to the general waiver of immunity in the Act. Three
of these are arguably applicable here: (1) 28 U.S.C. 2680(h), excluding
certain specified torts from the ambit of the Act; (2) 2680(b), exempting from
the Act any liability for loss or miscarriage of mail; (3) 2680(a), creating an
exemption from liability for acts done pursuant to a discretionary function. If
the claims in suit fall within one of the statutory exceptions, the district court
lacks subject matter jurisdiction. See Myers & Myers, Inc. v. U. S. Postal
Service, 527 F.2d 1252, 1255 (2d Cir. 1975); Gibson v. United States, 457 F.2d
1391, 1392 & n. 1 (3d Cir. 1972); Morris v. United States, 521 F.2d 872, 874
(9th Cir. 1975).
II
6

The jurisdictional grant of the Act, 28 U.S.C. 1346(b), gives the District
Court

7
exclusive
jurisdiction of civil actions on claims against the United States, for money
damages . . . for injury or loss of property, or Personal injury or death caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred. (Emphasis added).
8

The District Court, therefore, had jurisdiction of the subject matter only (1) if
there was a "personal injury" as defined by state law,6 and (2) if the acts
causing the "personal injury" would give rise to liability under state law if
executed by an employee of a private person.

A.
Personal Injury
9

Although upon the consolidated trial it appeared that no plaintiff was touched
physically or harmed financially, and that the sole damage claim was mental
suffering, New York recognizes as "personal injury" mental suffering that
results from a known category of tort. Battalla v. State, 10 N.Y.2d 237, 219
N.Y.S.2d 34, 176 N.E.2d 729 (1961); Ferrara v. Galluchio, 5 N.Y.2d 16, 176
N.Y.S.2d 996, 152 N.E.2d 249 (1958); Halio v. Lurie, 15 A.D.2d 62, 222

N.Y.S.2d 759 (2d Dept. 1961); See also N.Y. Gen. Con. Law 37-a
(McKinney).7 B.
Basis for Liability Under State Tort Law
10

The District Court held in a scholarly opinion that an action in tort would lie in
New York alternatively for the following: (1) invasion of the common law right
to privacy; (2) injury to common law copyright and property interest in private
papers; and (3) direct violation of constitutional right. We review these causes
of action under the law of New York Seriatim.

Common law right to privacy

11

The manifold nature of what is loosely termed "the right to privacy" is well
established. Both Dean W. Prosser, The Law of Torts, 117 (4th ed. 1971), and
the advisers of 3 Restatement (Second) of Torts 652A (1977), agree that the
right to privacy comprehends four Distinct rights, "which are tied together by
the common name, but otherwise have almost nothing in common except that
each represents an interference with the right of the plaintiff 'to be let alone.' "
Prosser at 804.

12

The four privacy rights listed in the Restatement are:

a) unreasonable intrusion upon the seclusion of another .... or

13
b) appropriation of the other's name or likeness .... or
14
c) unreasonable publicity given to the other's private life . . . or
15
d) publicity that unreasonably places the other in a false light before the public. . . .
16
17

652A (1977).

18

These cases all concern infringements of a single right the right to seclusion
free from unreasonable intrusion by another. The activities of the Government
in opening and reproducing plaintiffs' mail constituted such an intrusion. As
described by the Restatement, violation of the right against intrusion may occur
through "opening (one's) private and personal mail . . .." 3 Restatement, Supra,
652B, comment b, at 378-79; Cf. LaCrone v. Ohio Bell Tel. Co., 114 Ohio
App. 299, 182 N.E.2d 15 (1961) (intrusion by eavesdropping).

19

Appellant United States contends, however, that New York does not recognize

a common law right to privacy. Appellant places its reliance principally on the
famous 1902 case of Roberson v. Rochester Folding Box Company, 171 N.Y.
538, 64 N.E. 442. There, in commenting upon the seminal article by Warren
and Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890), a 4 to 3
majority of the New York Court of Appeals observed that "the so-called 'right
of privacy' has not as yet found an abiding place in our jurisprudence," 171
N.Y. at 556, 64 N.E. at 447, and denied a remedy for the appropriation and
commercial exploitation of the plaintiff's likeness.
20

Whatever the sweep of some of the language in the case, Roberson does not bar
a cause of action for Intrusion. As indicated, the "right to privacy" includes
several discrete torts within its ambit, of which appropriation is only one. As
Holmes observed, "(w)e do not get a new and single principle by simply giving
a single name to all the cases to be accounted for," The Common Law at 204
(1945 ed.). That the Roberson court rejected a privacy right in the context of an
appropriation does not imply a rejection of a remedy for intrusion.

21

Moreover, the court in Roberson rested its decision on the lack of precedent in
English law for enjoining the appropriation and publication of a photograph
which did not actually defame the plaintiff or injure her reputation. The court
was not asked to consider the right to be secure in one's papers as the
foundation for an actionable wrong. Had there been occasion to address the
intrusion question, the court might well have upheld a cause of action because,
unlike appropriation, intrusion had been previously acknowledged as a species
of tort.

22

Such a right had been recognized before the American Revolution. In Entick v.
Carrington, 95 Eng.Rep. 807, 19 How.St.Tr. 1029 (C.P.1765), the British
Secretary of State issued a non-judicial search warrant to procure evidence of
seditious libel. His messengers entered the plaintiff's house under the authority
of the purported warrant and seized and perused private papers. Though the
action was technically a trespass to the home, Lord Camden read the
protections of privacy more broadly. The court commented:

23 can safely say there is no law in this country to justify the defendants in what
(W)e
they have done; if there was, it would destroy all the comforts of society; for papers
are often the dearest property a man can have.
24

95 Eng.Rep. at 817-18.

25

By 1902 there were actual cases in New York in which damages had been

awarded for intrusions upon privacy that were the consequence of other torts. In
Moore v. New York Elev. R. Co., 130 N.Y. 523, 29 N.E. 997 (1892), the Court
of Appeals reviewed an action brought for impairment of certain easements of a
homeowner by the construction of an elevated railway. The court allowed an
award of damages for the reduction in the value of the property due to the fact
that the public travelling on the elevated trains could view the interiors of
certain rooms. And an earlier New York Common Pleas case had granted
damages for invasion of privacy by intrusion suffered in the course of an
unlawful repossession of chattels from a home. Ives v. Humphreys, 1 E. D.
Smith 196 (1851).8
26

When Roberson was decided, then, authority was not lacking that freedom from
intrusion was at least derivatively protected. More recently, the broad right to
privacy has secured the general recognition which the Roberson court thought
was lacking with respect to the limited tort of appropriation. In the nineteenthirties "the tide set in strongly in favor of recognition" of the tort of invasion of
privacy and it was accepted in most jurisdictions. Prosser, at 804; See Note,
The Right to Privacy Today, 43 Harv.L.Rev. 297 (1929) (by the writer);
Feinberg, Recent Developments in the Law of Privacy, 48 Col.L.Rev. 713
(1948) (the author now sits on this court); 1 F. Harper & F. James, Law of
Torts, 9.6 at 682-83 (1956).9

27

Intrusion upon the person has, in more recent times, been held to be a violation
of the Federal Bill of Rights, extending the early recognition that opening mail
without warrant is a violation of the Fourth Amendment. Ex parte Jackson, 96
U.S. 727, 24 L.Ed. 877 (1878). Nothing could be more revealing of the spirit of
the times, for the Constitution does not, of course, say a single word about
privacy. Compare Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967) (conceptualizing Fourth Amendment in terms of privacy)
and Justice Brandeis dissenting in Olmstead v. United States, 277 U.S. 438,
478-79, 48 S.Ct. 564, 72 L.Ed. 944 (1928). Justice Frankfurter in Wolf v.
Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), while refusing to
apply the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct.
341, 58 L.Ed. 652 (1914), to the states, announced that "(t)he security of one's
privacy against arbitrary intrusion by the police which is at the core of the
Fourth Amendment is basic to a free society." Id. 338 U.S. at 27, 69 S.Ct. at
1361. The proscription against such intrusions has been applied in numerous
constitutional contexts. See, e. g., Rochin v. California, 342 U.S. 165, 172, 72
S.Ct. 205, 96 L.Ed. 183 (1952) (use of stomach pump to extract evidence
violates Fourteenth Amendment); NAACP v. Alabama, 357 U.S. 449, 466, 78
S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (right to pursue "lawful private interests
privately"); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d

510 (1965) (marital privacy); Katz v. United States, supra (privacy in

conversation).
28

In the light of the current jurisprudence, it is hard to believe that the New York
Court of Appeals today would apply the rationale of the 1902 Roberson
decision to bar an action based on intrusion upon privacy. 10 In sharp contrast to
the reluctance of the 1902 court to advance the common law, a more
contemporary New York Court of Appeals has said, in another context:

29 sum of the argument against plaintiff here is that there is no New York decision
The
in which such a claim has been enforced. . . . (but) "if that were a valid objection, the
common law would now be what it was in the Plantagenet period." (citation omitted)
.30. . We act in the finest common-law tradition when we adapt and alter decisional
law to produce common-sense justice.
.31. . Legislative action there could, of course, be, but we abdicate our own function,
in a field peculiarly nonstatutory, when we refuse to reconsider an old and
unsatisfactory court-made rule.
32

Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694 (1951).11

33

A recognition of a right to privacy against intrusion is supported in New York,

moreover, by current legislative policy, couched though it is in terms of the
criminal sanction. New York Penal Law Article 250 (Right to Privacy)
250.25(1) provides that a person is guilty of tampering with private
communications when "(k)nowing that he does not have the consent of the
sender or receiver, he opens or reads a sealed letter . . . ." We do not force the
implication of a remedy in money damages from the criminal sanction, for that
would go beyond our function in finding New York law. Cf. Cort v. Ash, 422
U.S. 66, 78-80, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). We think, however, that
in gathering the strands of policy which affect our prophecy, intrusion into
private papers is now beyond the limit of civil as well as penal indulgence.12

34

Mindful that our role under the Federal Tort Claims Act is to ascertain state
law, rather than to depart from it, we are also aware that "(l)aw does change
with times and circumstances, and not merely through legislative reforms."
Bernhardt v. Polygraphic Co., 350 U.S. 198, 209, 76 S.Ct. 273, 279-80, 100
L.Ed. 199 (1956) (Frankfurter, J., concurring); See Battalla v. State, supra. A
refusal to accept a perceptible trend may be as much a failure to follow state
law as a refusal to apply existing precedent because it is somewhat ambiguous.
Our reading of past cases and our assessment of current legal thinking lead us to

the judgment that the New York Court of Appeals would recognize an action
for violation of the right to be free from unreasonable intrusion.13 We agree
with the District Court that there is a claim for relief in New York against a
private person for intrusion upon the privacy of another, and that such a claim
includes the opening and reading of sealed mail.14
Common Law Copyright and Property Interest in Private Papers
35
36

The District Court has written a scholarly thesis supporting the view that the
reading of private mail was a violation of a common law copyright of the
correspondents under New York law. 436 F.Supp. at 978-83. Judge Weinstein
concedes that the New York courts have not had a case directly in point. We do
not doubt that the New York courts accept the English doctrine of Gee v.
Pritchard, 36 Eng.Rep. 670 (Ch. 1818) that private letters, even if of no literary
value, are protected by common law copyright. Woolsey v. Judd, 11 Super. (4
Duer) 379 (N.Y.1855); See Folsom v. Marsh, 9 Fed.Cas. No. 4,901, p. 342
(C.C.D.Mass.1841) (Per Story, J.). But the common law copyright is, in
essence, a right of first publication, 1 Nimmer on Copyright 4.02, 4.03 &
4.07 (1978); Estate of Hemingway v. Random House, 53 Misc.2d 462, 464, 279
N.Y.S.2d 51, 54-55 (Sup.Ct.), Aff'd by order, 29 A.D.2d 633, 285 N.Y.S.2d
568 (1st Dept.1967), Aff'd on other grounds, 23 N.Y.2d 341, 296 N.Y.S.2d
771, 244 N.E.2d 250 (1968), which of necessity includes the right to suppress
any publication by injunction.15 Hence, although one may enjoin the
publication of letters to effectuate their suppression, the damage remedy
(defamation aside) would lie only if there were a spoliation of the right to a first
publication which actually destroyed the value of the owner's right to seek a
statutory copyright. See Szekely v. Eagle Lion Films, 140 F.Supp. 843, 849
(S.D.N.Y.1956), Aff'd, 242 F.2d 266 (2d Cir.), Cert. denied, 354 U.S. 922, 77
S.Ct. 1382, 1 L.Ed.2d 1437 (1957). Since the owner of the letter did not
consent to its publication, he did not lose his right to first publication. See
Nimmer, 4.03. And the mere copying and limited distribution of the letter did
not constitute a distribution to the public that could cause damage to the value
of the owner's continuing right to secure a statutory copyright. See Estate of
Hemingway, supra, 53 Misc.2d at 464-65, 279 N.Y.S.2d at 55. We would find
it strained, in any event, to say that the reading of the plaintiffs' letters by
several persons, none of whom circulated them to the world, is a "publication"
that destroys the value of the work in question. See 2 Nimmer 8.23; Cf.
Universal Copyright Convention, art. VI (Paris 1971) (publication defined as
"general distribution"); Berne Convention (Brussels 1948), art. 4(4)
(publication involves making works available in "sufficient quantities"); See
also Berne Convention (Paris 1971), art. 3(3).16 Hence, we do not find the tort
of infringement of common law copyright applicable in the instant case.

Violation of Constitutional Rights as Tortious Conduct

37
38

The District Court also held that the violation of plaintiffs' federal
constitutional rights is a separate ground for liability under state law.17 We do
not believe that the Federal Tort Claims Act comprehends Federal
constitutional torts in its reference to the "law of the place" under 1346(b). As
described in the House Judiciary Committee Report dealing with the Act's
direct predecessor bill, See Dalehite v. United States, 346 U.S. 15, 26, 73 S.Ct.
956, 97 L.Ed. 1427 (1953), the applicable rules of substantive decision, except
where otherwise specified, were to be drawn from "local law." H.Rep.2245,
77th Cong., 2d Sess., at 9 (1942). Attention was focused on everyday torts,
particularly the sort of negligence of which automobile drivers are guilty. Even
though federal law is supreme in the state courts, U.S.Const., art. VI; Testa v.
Katt, 330 U.S. 386, 391, 67 S.Ct. 810, 91 L.Ed. 967 (1947); General Oil Co. v.
Crain, 209 U.S. 211, 226-28, 28 S.Ct. 475, 52 L.Ed. 754 (1908), one does not
think of the specific terminology of "local law" except to describe a system
different from federal law. In the absence of any indication that Congress
conceived of "local law" under the Act as comprehending federal constitutional
torts only a glimmer until Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed.
939 (1946) we are not prepared to adopt so unusually broad a reading of the
"law of the place" requirement. Moreover, by adopting the "law of the place" as
the source for rules of decision under the Federal Tort Claims Act, Congress
expressly negated any possible inference that federal courts were to exercise
any "common law-making" power to fashion torts under the Act in the interest
of national uniformity.18 Compare Textile Workers Union v. Lincoln Mills, 353
U.S. 448, 77 S.Ct. 923, 1 L.Ed.2d 972 (1957).

39

Since Congress restricted the basis for liability under the Act to the "law of the
place," we think that it would be a Tour de force to consider direct violations of
the federal constitution as "local law" torts. Such a rule might be tantamount to
a bypass of the sovereign immunity of the United States without the consent of
Congress. We hold, accordingly, that the claim for relief may not be sustained
on that basis.

III
40

Having found that each of the plaintiffs suffered a personal injury as a result of
an intrusion upon privacy by the Government that would give rise to a private
law tort under the law of New York, we determine that the initial jurisdictional
requirement of 28 U.S.C. 1346(b) has been met.

41

We must now consider whether the Government may claim an exception from

liability under the provisions of 28 U.S.C. 2680. We will focus upon three
exceptions: (1) 2680(h), for certain specified torts; (2) 2680(b), for
miscarriage of mail; and (3) 2680(a), for discretionary functions.
A. S 2680(h)
42

Under this subsection of the Federal Tort Claims Act, there is an exception for:

43 claim arising out of assault, battery, false imprisonment, false arrest, malicious
Any
prosecution, abuse of process, libel, slander, misrepresentation, deceit, or
interference with contract rights. . . .
44

Although this exception might be construed as excepting all intentional torts,

the Government does not urge that reading upon us. In any event, the
jurisdictional statute, 28 U.S.C. 1346(b), covers "wrongful" as well as
negligent acts. See Hatahley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100
L.Ed. 1065 (1956); Dalehite v. United States, supra, 346 U.S. at 45, 73 S.Ct. at
972-73 (dictum). Thus, it has been held that the torts of trespass and invasion of
privacy do not fall within the exception of 2680(h). See Hatahley, supra
(trespass); Black v. Sheraton Corp. of America, 184 U.S.App.D.C. 46, 54-56,
564 F.2d 531, 539-41 (1977) (invasion of privacy).19

B. S 2680(b): The Postal Exception

45

We turn next to the postal exception, which also requires little discussion. The
exception relates to "(a)ny claim arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter."

46

The language of the exception itself indicates that it was not aimed to
encompass intentional acts. Had Congress intended to bring Intentional
disturbance of the integrity of a letter within the postal exception, it would not
have used the term "negligent transmission." Nor were the letters lost or
miscarried. "Miscarriage" in the context of mail means misdelivery.

47

We hold, therefore, that the postal exception does not apply to save the United
States from liability in these cases.20C. S 2680(a): "Discretionary Function"
Exception

48

Finally, we turn to consider whether the Government's mail opening project is

removed from the scope of the Federal Tort Claims Act by 2680(a), which
provides an exception for:

49 claim based upon an act or omission of an employee of the Government,

Any
exercising due care, in the execution of a statute or regulation, whether or not such
statute or regulation be valid, or based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not the discretion involved be
abused.
50

This is not a case where Congress has passed a mail-opening statute that is
being challenged as unconstitutional. It is common ground that there is no
statute or regulation which sanctions the mail opening procedure engaged in by
the CIA. Our inquiry relates therefore only to whether the CIA personnel were
engaging in a "discretionary function," rather than executing a policy required
by "statute or regulation." The "discretionary function" exception is distinct
from the exception based upon a statute or regulation. See Dalehite v. United
States, supra, 346 U.S. at 32-34, 73 S.Ct. at 966-67.

51

We state our conclusions in summary form. We hold: (1) that a discretionary

function can only be one within the scope of authority of an agency or an
official, as delegated by statute, regulation, or jurisdictional grant; (2) that the
CIA's legislative charter gave the Agency no authority to gather intelligence on
domestic matters; (3) that the Agency's partnership with the FBI in the mail
opening project led it to transgress the limitations of its charter; and (4) that
there was no "discretion" to engage in these mail opening activities, so that the
discretionary function exception does not apply. Hence, we do not reach the
question whether a Properly delegated but unconstitutional activity would come
within the "discretionary function" exception. Nor do we reach the question
posed by the Government: whether Congress intended to allow actions to be
brought under the Act which challenge discretionary acts as unconstitutional.
We note that, of course, such acts or omissions alleged to be unconstitutional
for example, violations of procedural due process would support liability under
the Act Only if they constituted independent torts under state law. It would be
an unusual situation when such a concatenation of wrongs would occur. But cf.
Myers & Myers, Inc. v. U. S. Postal Service, supra, at 1260 & n.8.

1.
52

A discretionary function can derive only from properly delegated authority.

Authority generally stems from a statute or regulation, or at least, from a
jurisdictional grant that brings the discretionary function within the competence
of the agency. Discretion may be as elastic as a rubber-band, but it, too, has a
breaking point. An act that is clearly outside the authority delegated cannot be
considered as an "abuse of discretion." See Hatahley v. United States, supra;

Myers & Myers, Inc. v. U. S. Postal Service, supra, at 1261 (no discretion to
violate regulations); Griffin v. United States, 500 F.2d 1059, 1068 (3d Cir.
1974) (same); United Air Lines v. Wiener, 335 F.2d 379, 393-94 (9th Cir.)
(same), Cert. dismissed, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549 (1964).21
53

In Hatahley v. United States, horses belonging to Indians were rounded up on

the public range and sent to slaughter by federal agents on the ground that they
were "abandoned" horses under a Utah statute which permitted such horses to
be eliminated. Under the Utah statute, no notice was required. The Federal
Range Code, however, required that written notice, together with an order to
remove livestock from the public range, be served on the alleged violator as a
precondition to impounding the animals. The federal range manager made a
policy decision to prosecute a vigorous campaign to destroy the Indians' horses.
This campaign went on for several years. 351 U.S. at 176, 76 S.Ct. at 749. The
range manager apparently determined that under the Utah statute he was not
required to give the notice mandated by the Federal Range Code.

54

The Supreme Court held that "both the written notice and failure to comply
(therewith) are express conditions precedent to the employment of local
procedures" under the Range Code, and that federal agents "are required to
follow the procedures there established." Id. at 178, 76 S.Ct. at 750. The United
States was held liable for "the willful torts" of its employees, since 28 U.S.C.
1346(b) provides for liability for "wrongful" acts such as trespass. Id. at 18081, 76 S.Ct. at 751.

55

The Court then considered the exception in 28 U.S.C. 2680(a). It held that the
agents had not exercised the "due care" required by the exception, noting that "
'(d)ue care' implies at least some minimal concern for the rights of others." The
Court disposed of the contention that the "discretionary function" exception
applied to these acts Beyond the scope of regulations by declaring that "(t)hese
acts were wrongful trespasses not involving discretion on the part of the agents
. . ." Id. at 181, 76 S.Ct. at 752.

56

Hatahley is significant authority in several respects. First, it had never been

decided before Hatahley that notice was required under the Federal Code when
the agents were engaged in enforcing the Utah statute. In fact, even the Court of
Appeals had held below that no such notice was required. 220 F.2d 666 (10th
Cir. 1955). Second, the agents were engaged in a policy promulgated by the
range manager and in force for several years. Yet the Court held that because
the notice required by the regulation was not given, the policy judgment in
question was without authority and therefore did not concern "any problem of a
'discretionary function' under the Act (citation omitted)." 351 U.S. at 181, 76

S.Ct. at 752.
57

The Hatahley analysis is strikingly relevant to the case at bar; the CIA's mail
opening project could not have been a "discretionary act" if the Agency lacked
authority to conduct such a program. We must, therefore, determine the scope
of the Agency's legally delegated competence.

2.
58

The Central Intelligence Agency was the grandchild of the Office of Strategic
Services ("OSS"), which conducted the United States' successful intelligence
and special operations campaigns during the Second World War. As the war
drew to a close, General William J. Donovan, head of the OSS, recommended
to President Roosevelt that a central authority be formed to obtain intelligence
from abroad and to determine national intelligence goals. It was proposed that
this agency would coordinate the intelligence activities of other departments,
such as the military services, but that the new central intelligence authority
would have " 'no police or law enforcement functions, either at home or
abroad.' " Rockefeller Report at 46.

59

After some debate within the Executive Branch, President Truman issued a
directive creating the Central Intelligence Group, early in 1946. The
Presidential Directive was explicit in limiting the Group's role to foreign
intelligence gathering. It declared that "(n)o police, law enforcement or internal
security functions shall be exercised . . .." and that

60
(n)othing
herein shall be construed to authorize the making of investigations inside
the continental limits of the United States and its possessions, except as provided by
law and Presidential directives.
61

Presidential Directive, Coordination of Federal Foreign Intelligence Activities,

F.R. Doc. 46-1951 (Feb. 1, 1946); See Rockefeller Report at 51.

62

The Central Intelligence Agency was chartered by Legislative enactment in

1947. The scope of its authority and the limitations thereon were patterned upon
General Donovan's recommendations and the experience of the Central
Intelligence Group. Critical provisions of this legislative charter, contained in
the National Security Act of 1947, Pub.L.No.253 102(d) & (e), 61 Stat. 497,
Codified at 50 U.S.C. 403(d) & (e), placed the Agency under the supervision
of the National Security Council and directed the Agency to

correlate and evaluate intelligence relating to the national security, and (to) provide
63

for the appropriate dissemination of such intelligence within the Government . . ..

64

102(d)(3). It also provided specifically "(t)hat the Agency shall have no

police, subpena, law-enforcement powers, or internal-security functions."

65

The meaning of these provisions is clarified by reference to their legislative

history. Members of Congress were concerned that failure precisely to spell out
the new Agency's limitations in the National Security Act might permit the
Agency to expand its activities into internal security matters. See Hearings on
H.R.2319 Before the House Comm. on Expenditures in the Executive Dept.,
80th Cong., 1st Sess., at 126-28, 170-75, 437-39, 479-81 (1947).22 Congress
responded to this issue by amending the proposed Act to define the duties of
the Agency and, specifically, to restrain any entry by the CIA into "internal
security" matters. H.Rep.No.961, 80th Cong., 1st Sess. 3-4 (1947); National
Security Act, Supra, 102(d).

66

Furthermore, National Security Council Intelligence Directives, designed to

guide the CIA, permitted so-called "overt" collection of foreign intelligence
within the United States (I. e., collection with the knowing and voluntary
cooperation of sources) but not "clandestine" collection in the United States (I.
e., collection without the source's awareness). Rockefeller Report at 55.

67

Thus, all parties involved in drafting and passing the legislation stated
expressly at times, and indicated implicitly throughout, that the CIA was not to
become concerned with developing intelligence as to domestic or internal
security matters, except "for protecting intelligence sources and methods from
unauthorized disclosure." 102(d)(3), 50 U.S.C. 403(d)(3). The subject
matter of the Agency's interest was to be foreign activity, not activity at
home, 23 and the Agency was not to have any "internal security functions."
102(d)(3), 50 U.S.C. 403(d)(3).

68

As noted, from 1958 on, the CIA began to examine intercepted mail not only to
satisfy its own need for intelligence about the U.S.S.R., but to satisfy as well
the FBI's requirements for counterespionage information and data on "peace
organizations, antiwar leaders, black activists, and women's groups." Senate
Report at 624.24 By the mid-sixties, then, the CIA had undertaken an operation
that involved broad and indiscriminate inspection of private mail with a view to
obtaining information on matters of domestic, as well as foreign, concern.

69

There was no room in the charter for a "policy judgment" that the CIA should
involve itself in gathering secret data on domestic problems. Indeed the CIA

knew this as well as anyone. An Agency internal memorandum admitted that

"there is no legal basis for monitoring postal communications in the United
States except during time of war or national emergency . . ."25

70

We find, therefore, that the CIA was acting so far beyond its authority that it
could not have been exercising a function which could in any proper sense be
called "discretionary."26 See Hatahley, supra.

3.
71

Though we hold that these activities of the CIA were beyond the realm of
discretion, we cannot share entirely the Moral concern of the District Court
over these activities, for the security of the nation was said to be involved. We
assume that the CIA officials meant well by their country. Even testimony
before the Senate Committee by a principal CIA official, stating that he knew
that the mail opening was illegal but thought it in the national interest, Senate
Report at 605, gives us no cause for a homily. As the Attorney General
reported:

72 issue involved in these past programs, in the Department's view, relates less to
The
personal guilt than to official government practices that extended over two decades.
In a very real sense, this case (mail opening) involves a general failure of the
government, including the Department of Justice itself, over the period of the mail
opening programs, ever clearly to address and to resolve for its own internal
regulation the constitutional and legal restrictions. . . .
73

D.J. Report at 5. It appears to us that it would be hypocritical for judges now to

assess the activity in terms of moral censure.

4.
74

Nevertheless, while, as federal agents, the CIA personnel may still have an
absolute immunity from State suits, Butz v. Economou, --- U.S. ----, ---- & n.22,
98 S.Ct. 2894, 2905 & n.22, 57 L.Ed.2d 895 (1978); Granger v. Marek, 583
F.2d 781 (6th Cir. 1978); See Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3
L.Ed.2d 1454 (1959), the CIA agents' qualified immunity in federal
constitutional suits arising out of this set of circumstances, See Bivens v. Six
Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),
may well not protect them if it be found that their mail openings were
"unconstitutional action on a massive scale." Economou, --- U.S. at ----, 98
S.Ct. at 2910.

75

Since a judgment in an action against the United States under the FTCA will
constitute a judgment in bar in favor of the employee whose act gave rise to the
claim, 28 U.S.C. 2676, it is likely, however, that claims for torts would be
made against the United States rather than, as Bivens suits, against the
employee.

76

That is as it should be. The CIA agent who, in other days, might have been a
candidate for a citation of merit, should not now be made to suffer alone an
ignominious financial ruin. The term "discretionary function", left obscure by
Congress, permits a judicial interpretation which achieves substantial justice
without chilling governmental action any more than an erosion of the absolute
immunity of Government officials has been thought to chill such action.
Compare Economou, supra, with Gregoire v. Biddle, 177 F.2d 579, 581 (2d
Cir.1949), Cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).

77

The responsibility is lodged, under the FTCA, where the careful report of the
Attorney General says it belongs on a diverse and complacent officialdom.
Compensation for incidental harm resulting from the Government's pursuit of
its security interests is more justly borne by the entire body politic than by
agents of the Government, who, out of patriotic zeal, exceeded the outer limits
of their delegated authority. So long enduring and pervasive a breach of
privacy, in the face of an utter lack of authority, is fittingly a responsibility the
United States should assume to compensate the plaintiffs.

78

This approach to the discretionary function provision, moreover, is congruent

with developments in the interpretation of constitutional and statutory law that
have increasingly extended state and municipal liability for civil rights
violations that are analogous to the privacy tort involved in the instant case.
Compare Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614
(1976), And Monell v. Department of Social Serv., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978).

79

We hold that the exception in 2680(a) is no bar to recovery against the United
States.

IV
80

Having determined that the United States is liable to these plaintiffs for harm
caused by mail openings, we must review the District Court's award of $1000
in compensatory damages and of an apology to each plaintiff.

81

Although damages under the Act are governed by state law, Hatahley, supra,
351 U.S. at 182, 76 S.Ct. at 752, the Act limits recovery to compensatory
damages and provides that the United States shall not be liable for punitive
damages, 28 U.S.C. 2674. In New York, as we have seen, freedom from
mental disturbance is a protected interest, but there must be a " 'guarantee of
genuineness in the circumstances of the case.' " Ferrara v. Galluchio, supra, 5
N.Y.2d at 21, 176 N.Y.S.2d at 999-1000, 152 N.E.2d at 252 (quoting
Prosser).27 The question is whether the testimony of the plaintiffs sustains a
finding of mental anguish under New York law, in which event the judgment
for $1,000 each would not be excessive, or whether there was no actual
damage, in which case only nominal damages of one dollar would have been
proper. Cf. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252
(1978) (construing 1983).28

82

The answer is not easy. There was no finding of physical injury and no loss of
employment. There also was no mental injury in the sense of "permanent
symptoms of anxiety." Ferrara, supra.

83

The question whether a finding of mental anguish is sustainable is further

complicated by two unusual features of these cases. First, the plaintiffs
deliberately sought to find out under the Freedom of Information Act whether
their mail had been tampered with. In direct response to their curiosity, they
received the information which resulted in the purported injury. Thus, in a strict
sense, "but for" the plaintiffs' acts in uncovering the openings, they might never
have been made to suffer anguish over the Government's wrongs. Second, the
letters interfered with were being transported to or from the Soviet Union, a
closed society in which, as most people are aware, mail may be opened by
secret police without "constitutional" restraint. Only the naive would be
emotionally unprepared for the possibility that a letter might be opened in the
Soviet Union. Under those circumstances, it is somewhat difficult to credit the
proposition that a reasonable person would be shocked by the mere fact that a
letter going to or coming from the U.S.S.R. had been opened At some point.

84

Although, in a sense, the plaintiffs brought their feelings of outrage upon

themselves by seeking information, we do not believe, upon reflection, that this
is a meaningful break in the chain of causation that links the mail openings to
any anguish suffered. The mail opening was an intentional tort and it may be
deemed to have been foreseeable that anguish might ensue if there were
discovery. See Derosier v. New England Tel. & Tel. Co., 81 N.H. 451, 130 A.
145 (1925); Prosser, Supra, at 263.29

85

More troublesome is the fact that plaintiffs should have been aware that their

85

More troublesome is the fact that plaintiffs should have been aware that their
mail Might be opened by the Soviet officials (particularly in the case of Ms.
MacMillen, who was writing to a well-known dissident). That could have
convinced the trier of fact that there was no compensable damage. Indeed, the
testimony of the plaintiffs with regard to their subjective feelings was both
weak and meager. The nub of their testimony was that each felt
"disappointment" that their own government could do such a thing. Such
anguish is political rather than emotional, much as a member of a Senate
investigating committee might feel toward the same revelation.30 The "injury"
was principally to "their wounded faith in our democratic institutions," 436
F.Supp. at 989, a loss of faith probably shared by many Americans who do not
expect compensation for such intellectual injuries.

86

The issue comes down to whether each plaintiff suffered any mental injury
whatever from the knowledge that a single letter had been opened. As the
District Judge properly charged the advisory jury (and we assume charged
himself), the plaintiffs could not recover money damages as a vindication of the
rights of the American people. Nor do we think that they may recover simply to
deter future action, for this particular statute prohibits punitive damages the
traditional "smart money" remedy used to discourage repetitive conduct.

87

The District Court did find, however, that "the emotional distress these
plaintiffs suffered was the sort that would be experienced by reasonable people
under the almost unprecedented circumstances of these cases." 436 F.Supp. at
988. Though we could view this finding as one merely of damage presumed
from the circumstances, worth only the nominal sum of one dollar, Cf. Carey v.
Piphus, supra, we interpret the finding more generously as determining that
these plaintiffs, whose demeanor the trial judge observed, actually suffered
personal anguish. We give "due regard . . . to the opportunity of the trial court
to judge of the credibility of the witnesses." Fed.R.Civ.P. 52(a). Though the
question of damages is close, we affirm the money judgments for $1,000 each,
with the feeling that they represent the upper limit of allowable compensation
in these cases.31

88

With regard to the Judge's order that the Government send a letter of apology to
each plaintiff, though such letters might some day achieve monetary value as
collectors' items, we do not view them as "money damages," the only form of
relief provided in the Act. 28 U.S.C. 1346(b). See Moon v. Takisaki, 501
F.2d 389 (9th Cir. 1974); Frankel v. Heym, 466 F.2d 1226, 1228 (3d Cir. 1972).

89

We accordingly reverse that part of the judgment ordering that letters of

apology be sent.

V
90

Birnbaum cross-appeals on the ground that the District Court was in error
because it denied his request for a jury trial, to which he contends he was
entitled under the Seventh Amendment. He argues that the statute, 28 U.S.C.
2402, which denies a right of jury trial, violates the Constitution because this is
a suit at common law within the meaning of the Seventh Amendment.32 "
(S)uits against the Government, requiring as they do a legislative waiver of
immunity, are not 'suits at common law' within the meaning of the Seventh
Amendment. McElrath v. United States, 102 U.S. 426, 439-440, 26 L.Ed. 189."
Glidden Co. v. Zdanok, 370 U.S. 530, 572, 82 S.Ct. 1459, 1484, 8 L.Ed.2d 671
(1962) (plurality opinion of Harlan, J.); See Cargill, Inc. v. Commodity Credit
Corp., 275 F.2d 745, 748 (2d Cir. 1960) (upholding statute barring jury trial of
a counterclaim by the United States).

91

The judgments on appeal, except for the order to send letters of apology, are
affirmed. The denial of the motion for a jury trial is also affirmed.

92

MOORE, Circuit Judge (concurring in part; dissenting in part):

93

I concur in Judge Gurfein's opinion both reluctantly and quite Dubitante except
as to part IV thereof, dealing with damages as to which I dissent. I say
"reluctantly" because I cannot distinguish the Supreme Court's decision in
United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32
L.Ed.2d 752 (1972); I say "Dubitante " because but for that decision I might
have believed that the opening of Soviet Union-U.S.A. correspondence might
well be a "discretionary function or duty on the part of a federal agency"
particularly since it matters not "whether or not the discretion be abused".

94

The CIA is an agency created by Congress to protect our national security in

the international field. If the CIA's powers should be expanded or
particularized, Congress is always free to so act. In the meantime the courts
will continue to be plagued with the necessity of evaluating and balancing the
basic values to be resolved, namely, "the duty of Government to protect the
domestic security, and the potential danger posed by unreasonable surveillance
to individual privacy and free expression". 407 U.S. at 315, 92 S.Ct. at 2135.

95

As to the amount awarded, even a one dollar sum (presumably the usual six
cents now raised to one dollar because of inflation) would not be justified. The
plaintiffs who had written the letters knew their contents. If "mental anguish"
resulted from a revelation of their contents, the anguish was of their own

creation. If the anguish was in the mind of the recipient, it was not created or
enhanced by the government's mail opening. I would, therefore, restrict the
damages to one dollar.

Senate Select Committee to Study Governmental Operations With Respect to

Intelligence Activities, Final Report, Book III, at 571 (1976) (Pl.Ex. 11)
(hereinafter Senate Report). General discussion of the history of the CIA's mail
opening program may be found at Id., at 559-636; Commission on CIA
Activities Within the United States, Report to the President (1975) (hereinafter
Rockefeller Report); Department of Justice, Report Concerning Investigation
and Prosecutorial Decisions with Respect to Central Intelligence Agency Mail
Opening Activities in the United States (A. 179-235) (hereinafter D. J. Report)

Their allegations that they have exhausted their administrative remedies, as

required under 28 U.S.C. 2675, are conceded. Birnbaum also asked for the
return of all copies of his letters. MacMillen sought to bring a class action

Avery's son, Michael, who sent the letter, sued separately in the District of
Connecticut. His claim has withstood a motion to dismiss. Avery v. United
States, 434 F.Supp. 937 (D.Conn.1977) (Clarie, J.)

Plaintiff MacMillen's effort to convert her suit into a class action was denied by
Judge Weinstein. 436 F.Supp. at 985-86. That denial was not cross-appealed

All parties have stipulated that New York law is to be applied

MacMillen and Avery simply alleged that each was "injured . . . under
circumstances where the United States, if a private person, would be liable to
plaintiff in accordance with the law of the place where the acts occurred." A. 6;
See A. 174. Birnbaum claims "damage to his privacy, his exclusive property
interest in the contents of his mail, and his interests protected by the Fourth
Amendment. . . ." A. 17

This provision has been interpreted to include under the rubric of personal
injury: mental distress, Weicker v. Weicker, 53 Misc.2d 570, 279 N.Y.S.2d 852
(Sup.Ct.), Rev'd on other grounds, 28 A.D.2d 138, 283 N.Y.S.2d 385 (1st Dept.
1967), Aff'd, 22 N.Y.2d 8, 290 N.Y.S.2d 732, 237 N.E.2d 876 (1968), invasion
of privacy (by appropriation, See N.Y.Civ. Rights Law 50, 51 (McKinney)),
Riddle v. MacFadden, 201 N.Y. 215, 94 N.E. 644 (1911), and, in general,
"every variety of injury to a person's body, feelings or reputation." Bonilla v.
Reeves, 49 Misc.2d 273, 279, 267 N.Y.S.2d 374, 381 (Sup.Ct.1966); Accord,
Rolnick v. Rolnick, 55 Misc.2d 243, 284 N.Y.S.2d 908 (Sup.Ct.1967); Rev'd

on other grounds, 29 A.D.2d 987, 290 N.Y.S.2d 111 (2d Dept. 1968), Aff'd, 24
N.Y.2d 805, 300 N.Y.S.2d 586, 248 N.E.2d 442 (1969)
8

In Moore, supra, the New York court was following the holding of the House
of Lords in Duke of Buccleuch v. Metropolitan Bd. of Works, L.R. 5 E. & I.
App. 418 (1872), sustaining damages, Inter alia, for loss of seclusion when
property abutting a home was taken and converted into a public highway.
Moore and Ives were not overruled in the Roberson opinion and would still
appear to be valid precedent. To be sure, there are statements to the effect that
the only right of privacy recognized in New York is statutory. See, e. g., Flores
v. Mosler Safe Co., 7 N.Y.2d 276, 280, 196 N.Y.S.2d 975, 977, 164 N.E.2d
853, 854 (1959); Gautier v. American Broadcasting Co., Inc., 304 N.Y. 354,
358, 107 N.E.2d 485, 487 (1952); Kimmerle v. New York Evening Journal, 262
N.Y. 99, 102, 186 N.E. 217, 217-18 (1933); Wojtowicz v. Delacorte Press, 58
A.D.2d 45, 47, 395 N.Y.S.2d 205, 206 (1st Dept. 1977), Aff'd, 43 N.Y.2d 858,
403 N.Y.S.2d 218, 374 N.E.2d 129 (1978). But none of these cases involved
intrusions, as opposed to other sorts of infringements upon privacy. Compare
Wojtowicz, supra, at 860, 403 N.Y.S.2d at 219, 374 N.E.2d at 130 (as yet no
New York recognition of common law "right to judicial relief for invasion of
privacy In consequence of unreasonable publicity . . .." (emphasis added))

Most states and the District of Columbia recognize invasions of privacy as

actionable torts. Prosser, Supra, 117 at 804, 1 F. Harper & F. James, Law of
Torts, supra, at 682-83; See, e. g., Pearson v. Dodd, 133 U.S.App.D.C. 279,
410 F.2d 701, Cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465
(1969) (recognizing tort of intrusion in general); LaCrone v. Ohio Bell Tel. Co.,
supra (Ohio App.) (intrusion by wiretapping); Sutherland v. Kroger Co., 144
W.Va. 673, 110 S.E.2d 716 (1959) (intrusion by search of shopping bag)

10

In the three-quarters of a century since Roberson, the particular type of privacy

invasion that was denied a remedy in that case appropriation and commercial
exploitation of a person's name or photograph has itself gained statutory
protection. 1903 N.Y. Laws, c. 132, 1, 2 (current version at N.Y.Civ. Rights
Law 50, 51 (McKinney))

11

The modern New York Court of Appeals has responded in the past to new
trends in jurisprudence by altering or developing decisional law. See, e. g., Dole
v. Dow Chem. Co., 30 N.Y.2d 143, 148-51, 331 N.Y.S.2d 382, 386-90, 282
N.E.2d 288, 291-94 (1972); Babcock v. Jackson, 12 N.Y.2d 473, 477-82, 240
N.Y.S.2d 743, 746-50, 191 N.E.2d 279, 281-84 (1963); Battalla v. State, supra,
10 N.Y.2d at 239-40, 219 N.Y.S.2d at 35-37, 176 N.E.2d at 730-31; Woods v.
Lancet, supra, 303 N.Y. at 351-56, 102 N.E.2d at 692-95

12

We note in particular the manner in which the New York Court of Appeals has
referred in dictum to a companion provision of the Penal Law 250.05 (against
eavesdropping) in the course of an opinion in which it upheld a cause of action
against intrusion under the law of the District of Columbia. Nader v. General
Motors Corp., 25 N.Y.2d 560, 570 n. 3, 307 N.Y.S.2d 647, 655 n. 3, 255
N.E.2d 765, 771 n. 3 (1970)
In Galella v. Onassis, 487 F.2d 986, 995 n. 12 (2d Cir. 1973), we said:

13

14

Although the New York courts have not yet recognized a common law right of
privacy, if we were required to reach the question, we would be inclined to
agree with the court below that when again faced with the issue the Court of
Appeals may well modify or distinguish its 1902 holding in Roberson v.
Rochester Folding-Box Co., 171 N.Y. 538, 64 N.E. 442 (1902), that "The socalled right of privacy has not as yet found an abiding place in our
jurisprudence." There is substantive support today for the proposition that
privacy is a "basic right" entitled to legal protection, Time v. Hill, 385 U.S.
374, 415, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (Fortas, J., dissenting) . . . .
There is an emerging recognition of privacy as a distinct, constitutionally
protected right. Roe v. Ingraham, 480 F.2d 102 (2d Cir. 1973), (Friendly, J.).
Nor is it fruitful to consider the analogous common law tort of trespass to
chattels as a ground of action here. The surreptitious opening and reproduction
of the letters without appropriating or physically damaging them does not fit
easily under the rubric of trespass to chattels. That cause of action requires,
either a dispossession of, or restraint on, the chattel, Wintringham v. Lafoy, 7
Cow. 735 (N.Y.Sup.Ct.1827); Hanmer v. Wilsey, 17 Wend. 91
(N.Y.Sup.Ct.1837), or its impairment by intermeddling, Socony-Vacuum Oil
Co. v. Bailey, 202 Misc. 364, 109 N.Y.S.2d 799 (Sup.Ct.1952); 1 Restatement
(Second) of Torts, 218(b) and Reporter's Note e; Accord, Prosser, Supra, at
77. Intermeddling is actionable only where the chattel has been "impaired as to
its condition, quality or (material) value. . . ." Restatement, id.; contra F.
Pollock, Law of Torts 354 (12th ed. 1923). There was no dispossession or
impairment here. Moreover, to the extent that Entick v. Carrington, supra, tends
to support an action in trespass here, it also, as we have seen, implies an action
that can be defined as intrusion upon privacy. Since the demise of the forms of
action, we need not look further for state tort law than to the right of privacy
which we have described. As the Supreme Court said in Warden v. Hayden,
387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782 (1967):
We have recognized that the principal object of the Fourth Amendment is the
protection of privacy rather than property, and have increasingly discarded
fictional and procedural barriers rested on property concepts (citing cases).

This applies as well to the non-constitutional torts of privacy.

15

16

The preemption of state common law of copyright by the 1976 copyright law
revision, 17 U.S.C. 301(a), is not relevant to any common law copyright
cause of action in this case, since under the new law preemption does not apply
to causes of action arising before 1978. Id. 301(b)(2)
That limited viewing does not constitute the sort of publication that transgresses
an owner's common law copyright was implicitly recognized in the famous case
of Baker v. Libbie, 210 Mass. 599, 97 N.E. 109 (1912). There, Chief Justice
Rugg distinguished between the right of an author of a letter and the right of the
holder of the physical letter by treating the former as a copyright in the ideas
and expression and the latter as a proprietary right in the physical material. The
Massachusetts court then went on to hold that the author's copyright would
permit restraint of "publication . . . in the sense of making public through
printing or multiplication of copies," but not the right to prevent a transfer of
the letter itself. Id. at 607, 97 N.E. at 112. Thus, the court appeared to treat the
copyright as uninfringed by a limited transfer (and, presumably, perusal)

17

This ruling becomes significant only if it is held that violation of the right to
privacy as a tort does not exist under New York law. Upon that alternative
assumption, however, we must address the question. Moreover, as we shall see
later, the right of action against the United States does not depend upon a
Constitutional violation by the CIA, but rather upon the commission of acts
which were beyond the delegated functions of the Agency

18

The cases on appeal arose before the 1973 Amendments to the Act, so we need
not consider any effect the Amendments should be deemed to have. Boger,
Gitenstein & Verkuil, The Federal Tort Claims Act Intentional Torts
Amendment: An Interpretative Analysis, 54 N.C.L.Rev. 497, 520-21 (1976)

19

When the Act was amended in 1973, this was assumed. See S.Rep.No.588, 93d
Cong., 1st Sess. 3 (1973)

20

Our decision in Marine Ins. Co. v. United States, 378 F.2d 812 (2d Cir.), Cert.
denied, 389 U.S. 953, 88 S.Ct. 335, 19 L.Ed.2d 361 (1967) is not to the
contrary. Marine Insurance held that where customs agents had temporarily
Removed and treated a mailed package of emeralds with a fluorescent powder
to detect a thief, the subsequent loss of the package by Postal authorities fell
within the postal exception. The claim in Marine Insurance was not for redress
because of the temporary removal and treatment of the package, but for its
subsequent "loss" from the postal system, which would have occurred even if
the interception had not taken place. 378 F.2d at 815

21

By way of contrast, in Kiiskila v. United States, 466 F.2d 626 (7th Cir. 1972), a
decision was treated as discretionary because the applicable regulation was
interpreted as reserving to the decisionmaker broad discretion, including "the
authority to grant exceptions." Id. at 628

22

Legislators wanted
to make certain that the activities and the functions of the Central Intelligence
Agency were carefully confined to international matters, to military matters,
and to matters of national security. We have enough people now running
around butting into everybody else's business in this country without
establishing another agency to do so.
I do not think it would be the Central Intelligence Agency's right, authority, or
responsibility to check on the ordinary domestic activities of the average
American citizen. . . .
Hearings at 438-39 (Rep. Brown).

23

Under 102(e) of the National Security Act, 50 U.S.C. 403(e), the Director
of the CIA may obtain by written request from the FBI such information as
may be essential to national security. But there is no correlative mandate to
assist the FBI's domestic operations in a covert manner

24

An FBI internal memorandum of 1966 illustrates the sorts of information

garnered by the CIA's mail openings: intelligence "regarding persons involved
in the peace movements, anti-Vietnam demonstrations, women's organizations,
'teach-ins' . . ., racial matters. . . ." Senate Report at 633 & n.336

25

Quoted in Rockefeller Report at 108

26

The only possibly arguable escape from this compelling conclusion might be if
it could be established that the President had actually authorized the mail
openings under his Article II power to conduct foreign affairs. See United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed.
255 (1936); Cf. United States v. United States District Court, 407 U.S. 297,
308-09, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (Keith ) (leaving open the
question whether the Fourth Amendment warrant requirements applies to the
President's surveillance power respecting "the activities of foreign powers" or
their agents). Of course, these cases do not in any way imply that the President
may ignore a specific limitation placed by Congress on the powers of an
agency it has created by statute. But, in any event, it has been demonstrated
above that these particular mail opening activities were not directed against
"activities of foreign powers" or their agents. And we have learned that the

President has no special constitutional power in matters involving domestic

intelligence. Keith, supra; compare Youngstown Sheet & Tube v. Sawyer, 343
U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952)
There is, moreover, an absence of proof upon this record that the CIA was
acting under direct presidential authority. See generally, Senate Report at 59499. The untimely death of Allen Dulles, long time Director of the CIA, and the
deaths of several successive presidents make such proof unavailable. President
Nixon, the sole surviving President from this period, does not recollect being
told about the mail openings. Senate Report at 597-98. Nor would speculation
about what our presidents knew or did not know be fruitful or in the public
interest. Though courts might feel compelled to delve further into that matter if
an agent's feet were being held to the fire in a criminal case, there is no such
compulsion in an action against the United States for money damages.
27

The Court of Appeals in Ferrara permitted recovery in a case in which

"permanent symptoms of anxiety" were present, noting that "(i)t is self-evident
that every case must be decided according to the facts peculiar to it." Id. at 22,
176 N.Y.S.2d at 1000, 152 N.E.2d at 253

28

Since cases have not arisen in New York in which there has been a judgment in
damages for the tort of intrusion upon privacy, there is no direct precedent
available, as Judge Weinstein observed

29

Significantly, the CIA could not have refused to release this information under
the Freedom of Information Act. Under the 1974 amendments, P.L. 93-502
2(b), an exception from disclosure is available with respect to an "agency
conducting a lawful national security intelligence investigation," for
confidential information "furnished only by (a) . . . confidential source." 5
U.S.C. 552(b)(7)(D). The use of the word "lawful" indicates that Congress
understood that there could be unlawful intelligence investigations, and that the
product of such operations would not be excepted from disclosure

30

Except possibly for Senator Church, Chairman of the Senate Select Committee
investigating intelligence activities, whose own personal mail to the Soviet
Union had apparently been opened by the CIA. See Senate Report at 575-76

31

In affirming, we are cognizant that the Statute of Limitations has run by now on
all unfiled mail opening claims for relief. The last mail opening occurred in
1973, Senate Report at 603-04, and no such program has existed thereafter. The
matter was exposed to public knowledge long before the Rockefeller Report
was published in June 1975, and even if either the New York statute of one year
(CPLR 215) or of three years (CPLR 214) should be taken to run from
discovery with the exercise of due diligence a most unlikely rule in this type of

case the statute has clearly run

32

The Seventh Amendment provides in pertinent part:

In Suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved . . .