[Community-Discuss] AFRINIC Borad Elections

[Owen DeLong]

> On Jul 10, 2019, at 00:51 , John Walu <walu.john at gmail.com> wrote:

> 

> @ Owen 

> 

> GDPR territorial scope extends beyond Europe since its is EU citizen specific rather than geo-specific.

> 

> https://gdpr-info.eu/art-3-gdpr/ <https://gdpr-info.eu/art-3-gdpr/>


Nope… It’s EU PERSON specific, not EU citizen.

EU Person has a rather odd definition, but it is a superset of EU citizens (or more accurately citizens of member nations).

However…

	GDPR only pertains in so far as the data processing is related to:


the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union; or
the monitoring of their behaviour as far as their behaviour takes place within the Union.

Since AfriNIC specifically doesn’t offer services in the EU, and doesn’t monitor the behavior of anyone to the best of my knowledge, the applicability is suspect at best.


> In other words, anyone (Data controller/processor) handling EU citizen data is automatically subject to the GDPR in the event of a data breach - irrespective of their geo-locality.


You also seem to have missed this part:


This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where Member State law applies by virtue of public international law.
While the fact that Mauritius stupidly (IMHO) signed an agreement making this paragraph problematic, many other nations in Africa have not and so it’s again questionable whether the law can be applied to entities outside of AfriNIC that are in countries that haven’t agreed to partake in this particular brand of European overreach. (Which I admit is a trick they unfortunately learned from the gestapo tactics of the US banking regulators).
Note also that in Article 2 we have this:


This Regulation does not apply to the processing of personal data:
in the course of an activity which falls outside the scope of Union law;
I’m pretty sure that AfriNIC’s issuing of IP addresses is not in any way governed by EU law. As such, the activity in question is, by my reading, exempt.


>  Ofcourse the main issue will be if the affected EU citizen will actually file a complaint in the EU Courts or not.  The second issue is whether the EU courts will find the data controller guilty and if the fined/penalized entity will to pay up or ignore given their remoteness to EU centers of power. (nb:Facebook and Google have so far been paying up ;-)


To the best of my knowledge, few, if any, of the people likely to be in the AfriNIC whois database would be EU persons since AfriNIC specifically requires the businesses they interact with to be in the AfriNIC service region. Is there a country in Africa that joined the EU without my noticing?


> 

> Is AfriNIC bound by GDPR?

> 

> The simple answer is -  it depends. 

> Do Afrinic processes and systems at any one point collect, store or process data that contains EU citizens?

> 

This is not the only criteria… Also it should be noted that the actual term is “EU persons” and not “EU citizens”.

Further, it only applies to EU Persons when conducting activities which fall within the scope of EU law. (see Article 2 reference above).

From Lexology.com (an article by Morgan Lewis & Bockius LLP): (https://www.lexology.com/library/detail.aspx?g=0dc9663d-ac3b-438e-adcd-1415a45f99ca)

At its core, the GDPR enumerates rights of natural persons who are present within the European Union (EU), whether or not their data is in fact in the EU. The word “citizen” does not appear in the language of the regulation, which would indicate a reluctance to simply identify rights of EU citizens as opposed to the rights of all people within the boundaries of the EU. Practically speaking, the GDPR protects the rights of anyone within its territorial reach while at the same time applying to any entity[2] <https://www.morganlewis.com/pubs/the-edata-guide-to-gdpr-whose-data-is-protected-under-the-gdpr> using or accessing this personal data, no matter where the data exists. Trying to decipher what this means can be confusing without a more thorough analysis of the regulation and its accompanying commentary.

——



> If the answer is NO. Then they are not bound by GDPR.

> If the answer is YES. Then they are potentially bound by GDPR to the extent that if that data is abused/breached, then they potentially face sanctions/penalties from EU courts.


If the answer is YES, then there are more questions that need to be asked…

1.	Is the person actually in the EU at the time the personal data is provided?
2.	Is the person otherwise classified as an “EU Person”?

If the answer to either is YES, then there are more questions that need to be asked… If both are NO, then you’re done, no GDPR for you.

1.	Is the activity in question subject to EU legal jurisdiction?

If you can answer NO to this (and I can’t think of an activity where AfriNIC would be collecting PII and answer yes), then again, you’re done, GDPR doesn’t apply.


> Either way, Mauritius has one of the most comprehensive Data Protection legislation on the continent <http://dataprotection.govmu.org/English/Legislation/Pages/default.aspx> and any data breach can actually be litigated locally (without the need for GDPR) with penalties to AfriNIC (if for example it is determined that email targets/addresses were harvested from Afrinic digital resources without consent from the data subjects).


I’ll leave the discussion of Mauritian law to those people who may be subject to it. I’m sure AfriNIC staff and applicable legal counsel can adequately address this.

Owen


> 

> walu.

> 

> On Wed, Jul 10, 2019 at 8:04 AM Owen DeLong <owen at delong.com <mailto:owen at delong.com>> wrote:

> 

> 

> > On Jul 5, 2019, at 14:13 , JORDI PALET MARTINEZ via Community-Discuss <community-discuss at afrinic.net <mailto:community-discuss at afrinic.net>> wrote:

> > 

> > Hi Alan,

> > 

> > If the board can't investigate that, we may have a problem, because Afrinic has to comply with GDPR.

> 

> Why? AfriNIC is not located in the EU and does not solicit business with EU persons.

> 

> AfriNIC is not, by my reading, subject to the GDPR.

> 

> Even if they were, AfriNIC did not violate GDPR here. Wafa might have, but I don’t think she is subject to GDPR, either. Last I looked, Tunisia was outside EU jurisdiction.

> 

> 

> > I don't know if those emails come from whois or something else, but some logs may tell.

> 

> Why is this relevant?

> 

> > I my opinion it will be nicer to get a response from Wafa, and I'm sure the community will be happy to forgive her. My intent is not to punish anyone, just to make sure that we find solutions to possible problems and mistakes and avoid repeating them.

> 

> I have no issue with the use of the email addresses. I think the far more important issue here is the message sent under color of authority which authority likely was not authorized to Wafa at the time.

> 

> Owen

> 

> > 

> > Regards,

> > Jordi

> > @jordipalet

> > 

> > 

> > 

> > El 5/7/19 10:16, "Alan Barrett" <alan.barrett at afrinic.net <mailto:alan.barrett at afrinic.net>> escribió:

> > 

> > 

> > 

> >> On 3 Jul 2019, at 15:50, JORDI PALET MARTINEZ via Community-Discuss <community-discuss at afrinic.net <mailto:community-discuss at afrinic.net>> wrote:

> >> 

> >> I’m angrier about this as much as I think on it again.

> >> 

> >> Can the board and the staff investigate this?

> >> 

> >> Can all the people that got those emails confirm if they have provided voluntarily their emails or if they have participated in Afrinic lists, or if those emails are part of their Afrinic contacts, in order to understand if this personal data (emails are personal data), have been collected from Afrinic internal databases.

> > 

> >    There is no reasonable way for AFRINIC staff to investigate whether the recipients had agreed to receive the messages sent by Wafa Dahmani.  There is also no reasonable way for staff to investigate whether email addresses were collected from the public WHOIS database.  There is no non-public AFRINIC database that could have been used.

> > 

> >    Regards,

> >    Alan Barrett

> > 

> > 

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