[Community-Discuss] [rpd->community-dsicuss] Last Call - RPKI ROAs for Unallocated and Unassigned AFRINIC Address Space AFPUB-2019-GEN-006-DRAFT03.

[Owen DeLong]

> On Jul 31, 2021, at 03:58 , Nishal Goburdhan <nishal at controlfreak.co.za> wrote:

> 

> On 27 Jul 2021, at 6:30, Owen DeLong wrote:

>> 

>> I am neither an arm chair juror nor judge. I will state that an actual judge (in fact, the Chief Justice of the Supreme Court of Mauritius) issued an order asking AFRINIC to immediately correct the WHOIS entries and restore Cloud Innovation’s membership on July 13th. Clearly he felt that CI’s claims of harm and the merits of the case were sufficient to grant such relief.

> 

> oh dear.  i’ve asked many times to stop referring to non-RPD related issues.  what you might think that the court did ask is simply a matter of your interpretation bounded by your education and interpretation of the text.  *my* education and interpretation says otherwise;  if i wanted to argue semantics with you (and this part is not relevant to RPD so i apologise in advance:

> 

Fair enough — Migrating to community discuss… For the sake of completeness, here is the actual order:



> </off-topic>

> .. i would say that the order that i read here [1] says: “do not act on the board’s resolution until you appear in court on $date”.  what i also see is that (as the transcript shows) this order-to-not-act arrived on july13, when action was made on july8.  specifically, i don’t see the the words (quoting you) “immediate” nor do i see “correct” nor do i see “restore” in the text of the order.  just a “cease and desist”;  which, i believe is what afrinic did do (ie. stopped changing WHOIS entries at that point) until such time as a court appearance was made.


So your claim is that since the actions were taken prior to the injunction, the injunction did not create an obligation to reverse those actions?

Your claim is that the following text:
…restraining and prohibiting You, the above named, Respondent acting through tis Board and/or its representatives and/or prepose in whatever capacity, from

…
(ii)	freezing in any manner whatsoever, any or all of the resources allocated to the Applicant;
(iii)	denying the Applicant access in any manner whatsoever to the AFRINIC WHOIS database;
(iv)	reclaiming, in any manner whatsoever, or any or all of the resources allocated to the Applicant by virtue of its membership as a Resource Member of the Respondent
…

Does not create an obligation to reverse the actions previously taken based on the board resolution, simply because said order was issued after the actions were taken.

An interesting interpretation, indeed.


> i am guessing that during the “exchange of views” these words were possibly mentioned;  likely others too, like “reinstate”, which would have been another important word, imho, that should have been in the original order.  what’s clear to me, reading the transcript of court on page 4, are the words : “will fully comply with the Order”, and as we know the WHOIS entries were corrected, so can we *please* stop this bleating about how afrinic didn’t listen to the court order.  because, that’s not how we all view this, and, it’s clear (at least to me) that the court saw reasonable doubt in their original order as well, else they would/should have immediately held afrinic in contempt of court for not listening to the july13 order.  they did not.

> </topic>


The transcript you refer to is from the hearing on the 15th. The message you are quoting referred to AFRINIC’s failure (and refusal) to comply between the issuance of the interim order issued on July 13th until forced to do so at the hearing on July 15th.

During that time, AFRINIC did refuse to make updates to WHOIS (thus violating (ii) and (iii) from the order.
During that time, AFRINIC did refuse to issue new ROAs that had been requested prior to the board resolution, thus violating (i) of the order.

By keeping the notice on WHOIS during that time, I would argue that AFRINIC also violated (iv) of the order in that a notice that the resources have been reclaimed is, in fact, a form of reclamation and refusing to remove such notice of reclamation constitutes a continuing act of reclamation in at least some manner.

Sure, there’s probably room for clever attorneys to engage in some level of sophistry around this, but I think that the outcome of the January 15th hearing made it pretty clear that the judges intent was for AFRINIC to do on the 13th what it finally did on the 15th.

Owen

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