[Community-Discuss] AFRINIC and the GDPR

Wed Apr 11 16:05:20 UTC 2018

> On Apr 11, 2018, at 07:19 , Andrew Alston <Andrew.Alston at liquidtelecom.com> wrote:
> 
> Owen,
>  
> Would the fact that AfriNIC serves  La Réunion and Mayotte not create such a nexus since both are formally part of the EU?

The answer is it depends. IANAL, but AIUI…

La Réunion and Mayotte may think it does, but that doesn’t necessarily matter to AfriNIC.

Since AfriNIC isn’t actually present in either location, it’s up to the government of Mauritius whether it would do any of the following:
	1.	Allow suit based on GDPR violation to be brought in an MU court.
	2.	Extradite AfriNIC for suit in a court of competent jurisdiction in one of those countries.

However, given the new information from Kirs that MU signed a safe harbor treaty with EU subjecting MU to EU ICO->GDPR, then yes, everyone and all organizations in MU are subject to GDPR by virtue of the treaty requiring MU to do one of the two things above in such a case.

> In the same way – there are various EU members served by ARIN?

And in the same way, the only reason ARIN as a company in the US which does not have nexus in those EU member countries would not be subject except for the fact that the US signed a very bad treaty with the EU granting them extraterritorial jurisdiction to pursue cases in US courts in regards to GDPR violations.

It is going to make live _VERY_ interesting for a lot of US organizations going forward and keep our courts quite busy for a number of years.

Owen

>  
> Andrew
>  
>  
> From: Owen DeLong [mailto:owen at delong.com] 
> Sent: 11 April 2018 17:12
> To: Andrew Alston <Andrew.Alston at liquidtelecom.com>
> Cc: Mike Silber <silber.mike at gmail.com>; Abibu R. Ntahigiye <abibu at tznic.or.tz>; General Discussions of AFRINIC <community-discuss at afrinic.net>; AfriNIC Discuss <members-discuss at afrinic.net>
> Subject: Re: [Community-Discuss] AFRINIC and the GDPR
>  
> Roughly translated:
>                The ability of EU to inflict GDPR on those operators outside of EU is predicated on that operator
>                having some business operation or presence within the EU which allows them to subject you to their
>                jurisdiction. Determining that you have said presence requires a specific determination by the
>                EU member state where said presence exists.
>  
> I’m pretty sure AfriNIC has no such nexus.
>  
> However, what is left out of Mike’s statement is the potential that any other country may have signed some
> sort of treaty with the EU (or a member state) which subjects them to GDPR and/or grants additional
> extraterritorial rights to the EU. Such is (unfortunately) the case with the US, for example.
>  
> Another key point is that EU citizens not living in Europe are not covered by GDPR. Non-EU citizens living
> within the EU are covered by GDPR. (At least that is my understanding… AIUI, GDPR applies to EU residents,
> not EU citizens.)
>  
> Owen
>  
> 
> 
> On Apr 11, 2018, at 06:44 , Andrew Alston <Andrew.Alston at liquidtelecom.com <mailto:Andrew.Alston at liquidtelecom.com>> wrote:
>  
> Thanks Mike,
>  
> That’s actually pretty useful in some sense – but can I ask for an English interpretation of the last sentence for those of us that sadly don’t speak Lawyer ☺
>  
> Thanks
>  
> Andrew
>  
>  
> From: Mike Silber <silber.mike at gmail.com <mailto:silber.mike at gmail.com>>
> Date: Wednesday, 11 April 2018 at 16:34
> To: "Abibu R. Ntahigiye" <abibu at tznic.or.tz <mailto:abibu at tznic.or.tz>>
> Cc: Andrew Alston <Andrew.Alston at liquidtelecom.com <mailto:Andrew.Alston at liquidtelecom.com>>, General Discussions of AFRINIC <community-discuss at afrinic.net <mailto:community-discuss at afrinic.net>>, AfriNIC Discuss <members-discuss at afrinic.net <mailto:members-discuss at afrinic.net>>
> Subject: Re: [Community-Discuss] AFRINIC and the GDPR
>  
> If I can add to this, there is as yet no clear direction from the European DPAs as a collective on how GDPR affects whois access in general.
>  
> The RIPE NCC approach is premised on their interactions with the Dutch DPA, rather than a Europe wide approach.
>  
> In addition, I am not sure I concur with Mr Alston’s insistence that “holding data of EU citizens” automatically places AfriNIC into the category of data controller in terms of GDPR or imposes any requirements on AfriNIC, particularly as the GDPR applies to processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union.
>  
> The extraterritorial application is premised on a nexus requirement set out in general terms in Recital 23, but requiring specific determination in terms of national law by Member States.
>  
> Mike
>  
> 
> 
> 
> On 11 Apr 2018, at 13:36, Abibu R. Ntahigiye <abibu at tznic.or.tz <mailto:abibu at tznic.or.tz>> wrote:
>  
> Dear Andrew, Members and the whole Afrinic community,
> Andrew has raised a very important issue for Afrinic operations - Thanks so much Andrew.
> The Board would like to inform you that the issue was discussed within the Board at the Afrinic 27 meeting in Lagos and the Management was tasked to work on the issue.
> The Board has also been made aware that the Mauritius Data Protection Act 2017 is already in effect and is aligned with the EU GDPR regulations.  The Board believes that these regulations are not a barrier to publication of the WHOIS data, and it has noted the RIPE NCC study that made such a finding.  The Board further believes that the biggest changes required by AFRINIC are in documenting how personal data is used, and in informing people at the time data is collected. 
> The AFRINIC management will provide further updates on the issues at AIS 2018 in Senegal.
> Further to the above, the Board expects to receive more insights on GDPR  related issues at the joint Boards (AfriNIC and RIPE NCC) meeting planned in Senegal.
> 
> Kind regards
> 
> 
> 
> On 11/04/2018 08:42, Andrew Alston wrote:
> Hi AfriNIC Board,
>  
> Can this board please *urgently* inform this community as to what preparations they have made as regards to compliance with the General Data Protection Regulations passed by the European Commision and the board will be in a position to give this community a full and complete report as to their GDPR compliance status and what will be changing before the 25th of May to ensure that when the GDPR comes into force AfriNIC is compliant.
>  
> Considering that the regulation comes into force on the 25th of May 2018 – and AfriNIC is 100% holding data of EU Citizens, which makes them subject to the regulations irrespective of the fact that they are domiciled in Mauritius – this is an urgent and critical issue.  It has direct impact on the whois database, abuse contact information, handling of data submitted during application process and potentially even the proposed review policy, just to name a few things that I can think of off the top of my head – and cannot be ignored.  I would in fact have liked to have seen discussions by the board in the minutes that have been published about the GDPR long before now – considering the impact – but failing that – the question is now being asked.
>  
> Andrew
>  
>  
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> 
> -- 
> Abibu R. Ntahigiye
>  
> CEO, tzNIC / Interim Chairman, Afrinic.
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