The opinion of the court was delivered by: BRODERICK
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.
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)
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:
(T)he 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.
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"
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.
a. Invasion of privacy
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).
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 ...