Internet Access v. Internet Infrastructure Security in the Big Apple

March 23, 2018

After the hearing had been delayed several times for logistical reasons, on the afternoon of Thursday, February 22, 2018, a team of two students and one MFIA clinic fellow headed to the Supreme Court of New York for our argument.

The case, Crawford v. New York City Department of Information Technology and Telecommunications et al ("Crawford II"), has been going on since 2014. It began when Harvard Law School Professor Susan Crawford filed a Freedom of Information Law (FOIL) request for information on a spreadsheet held by the New York City Department of Information Technology and Telecommunications (DoITT). Under FOIL, Public Officers Law § 87 et. seq., members of the public such as Professor Crawford may access the records of New York State agencies and officials.

The spreadsheet sought by Professor Crawford contains neighborhood-specific information regarding internet conduit infrastructure (essentially, the tubes that fiber-optic cables pass through) in Manhattan and the Bronx, and the Internet Service Providers (ISPs) who occupy that infrastructure. Professor Crawford hopes that obtaining the conduit data will shed light on the disparities in high-speed (broadband) internet access and adoption between high and low income communities in New York City, and help identify neighborhoods underserved by broadband access in order to inform specific public policy solutions.

DoITT contends that disclosing any of the internet infrastructure and location information in the spreadsheet would present an acute public safety and terrorism risk. Our position has been that DoITT's obligation under FOIL is to produce a segregable subset of the requested information, redacting any specific conduit location data surrounding high risk targets such as police stations or switching hubs. This would help address DoITT's concerns while allowing public access to information that would help shed light on Professor Crawford's concerns. Our position was affirmed last May, in a decision by former Justice Lobis of the New York Supreme Court, who ordered the City (DoITT) to redact the spreadsheet appropriately and disclose the rest of it to Professor Crawford, specifically any cells containing information pertaining to underserved neighborhoods.1

DoITT has appealed the May 2017 decision by Justice Lobis, who retired shortly after issuing her ruling in this case.

The February 22 hearing, however, was not part of the appeal on the merits. Still before the original New York State trial court, we gathered before Justice Lobis' replacement, Justice Hagler, to argue whether the Respondent (DoITT) should be granted a motion for reargument or renewal to dispute the basis of the May 2017 Order before the case goes to the First Department on appeal. DoITT's contention in pursuing these motions was twofold. First, they asserted that Justice Lobis inappropriately ordered the spreadsheet to be redacted to disclose information about "underserved neighborhoods" when the specific definition of that term did not enter the record until too late, during the reply stage. We acknowledged that the definition of "underserved" that Justice Lobis relied on as a specific proxy for how to redact the spreadsheet entered the record late in the case. However, it was our position that the research goal of identifying communities underserved by broadband internet access has been the explicit purpose of this litigation from the outset. Secondly, the Respondents claimed that because critical terms such as "geographic area" and "high value endpoints" remain undefined in Justice Lobis' order, a) the ruling is too vague to be enforceable without undue administrative burden and b) the record is fundamentally incomplete. It was our position that the City bears a statutory burden under FOIL to redact this spreadsheet. The fact that fulfilling that burden may require them to cross-reference or consult other documents to determine what is exempt is hardly an unreasonable burden. Secondly, we asserted that the Respondent's contention that Justice Lobis' decision is insufficiently clear or precise is an issue appropriately addressed on appeal, rather than through the extraordinary remedy of reargument.

At the end of our hearing, Justice Hagler ruled from the bench, granting the Respondent's motion for reargument. However, he qualified it in two crucial ways. First, he stipulated that there would not be another reargument hearing. Rather, by granting reargument, the seven new affidavits presented upon reargument by DoITT (and the intervenors on its side) would become part of the permanent record of the case, helping to flesh out what he interpreted to be the incompleteness of the record. Justice Hagler's second qualification of his ruling was to state that he would not vacate-i.e. overturn-Justice Lobis' decision. Therefore her ruling on the merits in our favor remains, and will have to be challenged by the City on appeal. Thus although we lost on our opposition to the motion for reargument, we were pleased to be upheld on the merits, and look forward to preparing for the appeal.

1.  This was defined in the record as "any geographic area in which less than 30% of households subscribe to high speed internet access."