Spock v. United States

Decision Date18 December 1978
Docket NumberNo. 76 Civ. 4457 (VLB).,76 Civ. 4457 (VLB).
Citation464 F. Supp. 510
PartiesBenjamin SPOCK, Plaintiff, v. UNITED STATES of America, Director of the National Security Agency, and Unknown Agents of the National Security Agency, Defendants.
CourtU.S. District Court — Southern District of New York


Herbert Jordan, Rabinowitz, Boudin & Standard, New York City, for plaintiff.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., by Gary Cooper, Asst. U. S. Atty., New York City, for defendants.




Plaintiff seeks redress against the United States, the Director of the National Security Agency ("NSA"), and several unknown agents of NSA for the alleged interception of plaintiff's oral, wire, telephone and telegraph communications in violation of plaintiff's constitutional, statutory and common law rights. Plaintiff grounds his cause of action on the First and Fourth Amendments, 18 U.S.C. § 2510-2520, 47 U.S.C. § 605, and state law. He seeks 1) a declaratory judgment that the alleged interceptions were unlawful; 2) a permanent injunction restraining the Director of NSA and his agents from further interception of the plaintiff's communications and from the use or retention of any information obtained by previous interceptions; and 3) an award of compensatory damages against the United States and the unknown agents, and an award of punitive damages against the unknown agents.

The Government, on behalf of all defendants, has moved to dismiss the complaint. The Government asserts as bases for dismissal that the court lacks jurisdiction over the United States; that the complaint fails to state a claim against the Director of NSA; and that the complaint is improperly asserted against the unknown agents. It is also contended that the state secrets privilege requires dismissal of the complaint.

On the grounds set forth herein, defendants' motion is denied.

II Jurisdiction over the United States

The Government argues that the court lacks jurisdiction over the United States because the United States has not waived sovereign immunity with respect to the claims asserted in the complaint. Whether there has or has not been such waiver is determined by reference to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1976)1 and 28 U.S.C. § 2674 (1965).

The Federal Tort Claims Act requires, as a predicate for liability, the existence of a valid cause of action under the law of the forum state. See, e. g., Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Section 1346(b) provides in pertinent part as follows:

The district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on or after January 1, 1945, 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 supplied).

28 U.S.C. § 2674 provides in pertinent part:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances . . .. (emphasis supplied).

Plaintiff has categorized his cause of action as, among other things, one for invasion of privacy under New York law.2 I find that today New York would recognize a cause of action for invasion of privacy as alleged in the instant complaint, either as "some facet of the common law right of privacy" or as a civil derivative of New York Penal Law § 250.00 et seq. (McKinney 1967). Since on the allegations of the complaint, if proved, "a private person"3 would be liable to plaintiff under the law of New York, the Federal Tort Claims Act authorizes this court to exercise jurisdiction over the United States.4

a. Invasion of privacy5

The Government insists that any common law cause of action for invasion of privacy in New York is precluded by the line of cases following Roberson v. Rochester Folding-Box Co., 171 N.Y. 538, 64 N.E. 442 (1902). Essentially, Roberson and its progeny held that causes of action for invasion of privacy in New York are statutorily limited to cases involving commercial exploitation. See New York Civil Rights Law §§ 50 and 51 (McKinney 1976).6 The Government argues that in light of Roberson, supra, a determination by this court that New York would recognize the cause of action alleged in plaintiff's complaint would violate Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938):

Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," be they commercial law or a part of the law of torts. And no clause in the constitution purports to confer such a power upon the federal courts. . ..

304 U.S. at 78, 58 S.Ct. at 822.

Conduct of the type alleged in plaintiff's complaint is generally regarded as falling within the rubric of "invasion of privacy." See, e. g., Nader v. General Motors Corp., 25 N.Y.2d 560, 569-70, 307 N.Y.S.2d 647, 255 N.E.2d 765 (1970) (applying District of Columbia law). Plaintiff cites Galella v. Onassis, 487 F.2d 986, 995 n. 12 (2d Cir. 1973), for the proposition that in New York State today invasion of privacy is actionable.

The relatively recent phenomenon of invasion of privacy by means of electronic surveillance has, in fact, received little attention from the highest New York State court.7 Chief Judge Fuld, speaking for the New York Court of Appeals in Nader v. General Motors Corp., supra, 25 N.Y.2d at 570 n. 3, 307 N.Y.S.2d at 655 n. 3, 255 N.E.2d at 771 n. 3, pointed out that "the question whether wiretapping and presumably other electronic surveillance affords a predicate for an invasion of privacy action has not yet arisen in our own jurisdiction . . ."

Such conduct is quite obviously not encompassed by Sections 50 and 51 of the Civil Rights Law, which regulates commercial exploitation of one's name or likeness. The right sought to be vindicated in the action before me is, in the broader sense, a right to be let alone, and in the narrower sense, a right to protect oneself from having one's private affairs known to others. See Nader, supra, 25 N.Y.2d at 566, 307 N.Y.S.2d 647, 255 N.E.2d 765. In either sense the right sought to be vindicated extends well beyond the traditional parameters of invasion of privacy as defined in statutes protecting an individual from a wrongful appropriation of his name or likeness.

Rights comparable to that asserted by plaintiff have come to be recognized in the majority of the states as being entitled to protection. See Galella v. Onassis, supra, 487 F.2d at 995 n. 12; Birnbaum v. United States, 436 F.Supp. 967, 976-77 (E.D.N.Y. 1977).

A determination that the New York Court of Appeals would recognize an invasion of privacy cause of action beyond the parameters of Roberson, supra, is not without precedent. In Galella v. Onassis, infra, 353 F.Supp. at 229-231, the district court reached such a conclusion. The court of appeals, while not specifically reaching this issue, noted that if required to reach the question, it would be inclined to agree with the determination of the court below. 487 F.2d at 995 n. 12. See also Birnbaum v. United States, supra, 436 F.Supp. 976-78; Greenawalt, New York's Right of Privacy—The Need for Change, 42 Brooklyn L.Rev. 159, 162 n. 13 (1975).

In fact Nader v. General Motors Corp., supra, foreshadows such a resolution of the issue by the Court of Appeals. While the lower court in that case did not rest its decision on the existence in New York of a common law action for invasion of privacy, the lower court recognized that it was entirely possible that the New York Court of Appeals would find that "some facet of the common law right of privacy" was invaded by such conduct as unprivileged wiretapping. 57 Misc.2d 301, 292 N.Y.S.2d 514, 517-518 (Sup.Ct.N.Y.Co.1968).

Although District of Columbia law was applied in Nader,8 the discussion in Chief Judge Fuld's opinion for the Court of Appeals took note of the general trend in other jurisdictions to recognize causes of action for invasion of privacy. In determining what constituted an intrusion which would ground a cause of action for invasion of privacy, the New York Court of Appeals had no hesitancy in deciding that allegations of illegal wiretapping and eavesdropping were sufficient to sustain the complaint under the law of the District of Columbia. Judge Fuld ventured into a detailed analysis of this "untried and developing area of tort law," — an analysis which was not essential to the resolution of the issue before the court. See Nader, 25 N.Y.2d at 574, 307 N.Y.S.2d at 658, 255 N.E.2d at 773 (Breitel, J., concurring opinion), quoting Pearson v. Dodd, 133 U.S.App. D.C. 279, 283, 410 F.2d 701, 705, cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (1969). In his concurring opinion, Judge Breitel implied, by references to the law in New York State "thus far" and "at present," 25 N.Y.2d at 573, 307 N.Y.S.2d 647, 255 N.E.2d 765, that there was a strong possibility of a change or modification in the New York law with respect to the cause of action for invasion of privacy.

Federal courts are not obliged automatically to apply the last highest state court determination. See Warner v. Gregory, 415 F.2d 1345, 1346 (7th Cir. 1969), cert....

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