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[rpd] Staff & Legal Assessements on "Internet Numbers review by AFRINIC"'s Proposal
jacksonmuthi at gmail.com
Thu May 11 14:21:31 UTC 2017
Arsène Tungali wrote on 11/05/2017 15:26:
> Thanks Arnaud,
> May I ask te PDP chairs to let us know what is expected from us?
You take recourse as authors on issues pointed out by staff in its
>> 2.0 Staff Comments
>> * On Sec 13.6 - Our previous concerns that AFRINIC may be
>> legally exposed regarding what member data can be published
>> in the annual "Compliance Report" seem to have been
>> addressed by the inclusion of "in accordance with Mauritius
>> Data Protection Act and NDA with members." The act however,
>> only concerns personal information. The kind of information
>> to include in the compliance report should preferably be to
>> the discretion of AFRINIC.
>> * Authors to clarify on if the arbitration process can be
>> initiated by the member anytime during or (only) after the
>> review is completed. There also needs to be a time limit
>> around when the arbitration process must complete (for the
>> arbitration team to produce their findings/report).
>> * On Staff Workload: All review requests shall be handled
>> First in, First Out (at staff discretion) - in which case,
>> no significant impact to staff workload is expected.
>> * On the clause: “The review shall be conducted in full
>> transparency and neutrality”. Authors need to expound more
>> on what this means - as AFRINIC cannot disclose details of
>> an ongoing audit/review to the public while doing the review
>> - if this is what authors meant by "transparency".
>> * On the Clause: “AFRINIC shall publish the resources to be
>> recovered for a period of three (3) months; during which the
>> organization may at any time, seek compliance” - AFRINIC
>> will add “remarks” attributes to the concerned whois
>> database objects, with information regarding the ongoing
>> review. We think that this is sufficient to address the
>> "publish" requirement in this clause.
>> 3.0 Comments from Legal Counsel
>> *Legal Counsel’s Assessment*
>> 1. In the implementation phase staff will have to deal with
>> evidence emanating from several jurisdictions. Moreover, staff
>> will face the arduous task of assessing
>> evidence/information/data from different sources and of
>> different evidential value. Staff will be burdened with testing
>> the reliability of this evidence/information/data to assess and
>> weigh theses evidences and to decide whether same may be used to
>> establish abuse or wrongful use of Internet Number Resources.
>> The possibility of collecting evidence/information/data coming
>> from different sources via affidavits or depositions before
>> Commissioner of Oath may have to be envisaged to partly ease
>> pressure on staff.
>> AFRINIC will have to protect itself and act only on reliable,
>> cogent and admissible evidence before finally revoking
>> allocation of resources which the investigated member claims has
>> been prejudicial to it and consequently claims for compensation.
>> This possibility should always be envisaged. The increasing
>> value of IPv4 resources point in that way.
>> 2. What modus operandi should be put into place to “hear” the
>> investigated party to ensure fairness? The policy proposal does
>> not provide anything in this regard and should address it.
>> 3. It will not always be possible to confront the investigated
>> party with data/documents/evidence coming from third parties who
>> may have disclosed same in confidence and have expressly refused
>> to be named or referred to.
>> 4. The arbitration referred to in the proposal has to be
>> effected within the jurisdiction of one country – and the main
>> question is – which would this country be?
>> 5. Section 13.5 of the proposal states: “the outcome of the
>> arbitration process is unequivocal”. This is in contradiction
>> of, Articles 1027 to 1027-9 of the Code de Procedure Civile of
>> Mauritius which provides that a party to an arbitration may seek
>> the “annulation “of an award by seizing the Supreme Court.
>> 6. The "Mauritius Data Protection Act" only applies to personal
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