NORMAN BIRNBAUM ET AL. PLAINTIFFS-APPELLEES AGAINST UNITED STATES OF AMERICA DEFENDANT-APPELLANT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP04M01816R000502010008-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 46
• Document Creation Date: December 21, 2016
• Document Release Date: November 6, 2008
• Sequence Number: 8
• Publication Date: November 9, 1978
• Content Type: MISC

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Id. at 27. The proscription against such intrusions has
been applied in numerous constitutional contexts. See,
e.g., Rochin v. California, 342 U.S. 165, 172 (1952) (use
of stomach pump to extract evidence violates Fourteenth
Amendment); NAACP v. Alabama, 357 U.S. 449, 466 (1958)
(right to pursue "lawful private interests privately");
Griswold v. Connecticut, 381 U.S. 479 (1965) (marital
privacy); Katz v. United States, supr -(privacy in
conversation).
In the light of the current jurisprudence, it
he 1902 Roberson decision to
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is hard to believe that the New York Court of Appeals today
would apply the rationale of t
bar an action based on intrusion upon privacy. 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:
The sum of the argument against plaintiff
here is that there is no New York decision in
which such a claim has been enforced.... [but]
" I
if
h
l
t
at were a va
id objection, the common
law would now be what it was in the Plantagenet
period." [citation omitted] ... We act in the
finest common-law tradition when we adapt
and alter decisional law to produce common-
sense justice.
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 unsatis-
factory court-made rule.
I Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E. 2d 691, 694 (1951).
A recognition of a right to privacy against
j intrusion is supported in New York, moreover, by current
rrs ,nnAntnnn it 10
I legislatve policy, couched though it is in terms of the
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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 are also aware that "[l]aw
circumstances, and not merely
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 (1975). We think, however, that in
strands of policy which affect our prophecy, intrusion
into private papers is now
as penal. indulgence.
Mindful that our role under the Federal Tort
Act is to ascertain state law, rather than to depart
well
does change with times and
through legislative r. of orms ..tt
Bernhardt'- vPolygraphic Co., 350 U.S. 198, 209 (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
. tt
refusal to apply existing
precedent because it is somewhat ambiguous.
of past cases and our assessment
Our reading
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 n-rlnim es the opening and
reading of sealed mail. 14
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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. Ct. (4 Duer) 379 (N.Y. 1855);
see Folsom v. Marsh, 9 Fed. Cas. 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 He _r=-wa?. 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. 2d 568 (1st Dept.
1967), aff'd on other grounds, 23 N.Y. 2d 341, 244 N.E. 2d
250, 296 N.Y.S. 2d 771 (1968), which of necessity includes
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the right to suppress any publication by injunction.
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 actu-
ally 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
(2-d Cir.), cert. denied, 354 U.S. 922 (1957).'
Since the owner of the letter did not consent to
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its publication, he did not lose his right to first
publication. See Dimmer
? 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 IIisc. 2d at 464-65. 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
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Berne Convention (Paris 1971), art. 3(3). Hence, we
do not find the tort of infringement of coupon law copyright
applicable in the instant case.
Violation of Constitutional Rights
as Tortious Conduct
The District Court also hel at the violation
of plaintiffs' federal constituti al ri is is a separate
ground for liability under state w. 17
Je do not believe
that the Federal Tort Claims Act comprehends-federal?const-i-
tutional 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
the
bill, see Dalehite v. United States, 346 U.S. 15, 26 (1953),/
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