## Facts

- From about 1953 to 1973, the CIA operated a covert program intercepting selected first-class international mail at major U.S. mail gateways.
- CIA personnel intercepted, opened without a warrant, and copied certain letters, then resealed and returned them to the postal system for delivery.
- In the consolidated actions, two plaintiffs had sent letters abroad and one had received a letter in the United States; each letter was opened and copied by the CIA.
- Plaintiffs learned of the interceptions only years later after public disclosures following investigations and information requests.
- Plaintiffs alleged emotional and dignitary harm from the invasion of privacy; they did not prove economic loss, employment harm, physical injury, or reputational damage.
- Plaintiffs sued the United States under the Federal Tort Claims Act (FTCA) and sought to proceed on behalf of a proposed class of similarly affected persons.
- The United States admitted CIA employees opened and copied the specific letters at issue, leaving primarily the characterization of liability, the applicability of FTCA limitations, and damages for trial.
- The court used an advisory jury to inform its assessment of nonpecuniary damages and community valuation of privacy harms.

## Issues

1. Whether the FTCA waived sovereign immunity and provided jurisdiction for claims based on CIA mail opening, or whether the claims were barred by FTCA exceptions (including discretionary function limits).
2. Whether opening and copying sealed personal correspondence constituted a compensable tort under New York law, including invasion of privacy by intrusion upon seclusion.
3. Whether a class action was procedurally appropriate for these FTCA claims.
4. Whether damages could be awarded for emotional and dignitary harm without proof of pecuniary loss or other concrete consequential injury.
5. Whether the court could empanel an advisory jury and include nonmonetary remedial measures as part of the remedy.

## Decision

- The court held it had FTCA jurisdiction over the suits.
- The court denied class treatment and proceeded only on the individual claims.
- The court found the CIA’s warrantless opening and copying of plaintiffs’ letters was tortious under New York law as an invasion of privacy, and also violated constitutional privacy protections in personal correspondence.
- The court held it could empanel and consider an advisory jury’s assessment of the value of privacy and the existence of psychic injury.
- The court ordered that each plaintiff receive a government letter expressing regret and indicating steps to prevent recurrence, as an ameliorative adjunct to damages.
- The court awarded each plaintiff $1,000 in damages plus costs.

## Legal Principles

- FTCA liability depends on whether the complained-of conduct would create liability for a private person under the law of the place where the acts occurred.
- Conduct that violates explicit statutory and constitutional constraints is not treated as shielded by the FTCA’s discretionary-function protection.
- Under New York law, unreasonable intrusion upon seclusion can include opening and copying private personal mail, supporting an invasion-of-privacy tort claim.
- Compensable injury for invasion of privacy may include emotional and dignitary harms even without economic loss, where the wrongful intrusion itself is the gravamen of the injury.
- A district court may use an advisory jury under Federal Rule of Civil Procedure 39(c) to inform valuation of nonpecuniary harms.
- In an FTCA damages action, a nonmonetary remedial measure may be considered as an adjunct aimed at mitigating harm, alongside monetary compensation.

## Conclusion

The court held that the CIA’s warrantless opening and copying of plaintiffs’ sealed correspondence supported FTCA liability as an invasion of privacy under New York law, rejected class treatment, and awarded modest damages for nonpecuniary harm together with letters of governmental regret intended to mitigate the injury.


Birnbaum v. United States, 436 F. Supp. 967 (E.D.N.Y. 1977)