[rpd] Staff & Legal Assessements on "Internet Numbers review by AFRINIC"'s Proposal

[Jackson Muthili]

Arsène,

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
assessment below.👇

>>           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
>>     information/data.
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