[rpd] Last Call for "AFPUB-2016-GEN-001-DRAFT-04 - Internet Number Resources Review by AFRINIC"

[Andrew Alston]

Owen,

Irrespective of your assertions on ICP-2 which, while it may hold up in some jurisdictions, may well run foul of legislation in other jurisdictions – if an entity is domiciled in in the region in which the RIR is situated – it could easily be argued that the RIR serving said entity was entirely valid even under the ICP-2 concepts.

Now – let me ask you – how difficult is to create an entity the jurisdiction of any of the RIR’s?  As which point – that argument may well become mute.

With regards your assertion that the pricing issue can become an election issue – on this – you are MOSTLY correct – however – it is extremely difficult to make an election issue without complete transparency – because it becomes too easy for the board to justify the fees – so the actual election issue is transparency.

However – those points I believe are out of scope of this discussion and I am more than willing to have that discussion on either the members list or the community list.  What is however relevant to this discussion is the fact that when an organization is already potentially in a dubious legal position – to go down the road of adding further substantiated legal liability as advocated for by members of this list – is neither in the interests of the organization or the interests of the community in general.

What has clearly been demonstrated to me on this list in the discussion of this policy, is that I believe that AFRINIC, with its current policies and processes, and without a transfer mechanism that allows a member to go elsewhere – may well constitute a significant and sustained business risk.

The fact is that ISP’s rely on their resources – an ISP cannot function without said resources – and I am looking at a scenario where the RSA purportedly behinds an ISP to the policies passed by this community.  Right now, we sit in a situation, where a policy is sitting in last call despite the fact that there were sustained and non-addressed issues that go back to before Mauritius.  We have a situation where a member of the board of said organization, is advocating for said policy, despite the fact that there is published legal advice stating that the policy would put the company at extreme risk.  We have a situation where members of this community have clearly and without compromise shown their willingness to disregard legal advice and continue to push for policy that could substantially damage Afrinic and hence the African Internet ecosystem.  Be it this policy, or whatever policy may arise tomorrow – without organizations having the ability to go elsewhere – faced with a scenario where a bunch of people who have zero relationship even necessarily to the industry – can potentially pass policy that may strip an organization of their resources – that right there – represents a significant business risk and I would go so far as to say is a potential liability to every member of AFRINIC.

As of right now- while the board has typically stayed silent on policy issues – and I do believe that is the correct stance in most cases – faced with a situation where the community is pushing for policy that could not only damage AFRINIC itself – but could also damage the Internet Ecosystem substantially – I believe that the board of this organization has a duty under their mandate in section 3 of the bylaws to step in and do something about this.  The board under its mandate in section 3 of the bylaws has the following objectives:

3.4.iii to promote responsible management of Internet resources throughout the African region, as well as the responsible development and operation of Internet infrastructures;
3.4.v to propose and take such steps as are necessary to promote the development of public policies in the best interest of members and to seek legislative and regulatory consideration, whether by way of meetings or representations, of issues of general benefit to the members, where and when appropriate;
3.4.vii to disseminate among its members information on all matters affecting the Company and its members and to provide for and be a central channel of communication for the members of the Company and generally for the furtherance and promotion of their interests;

On section 3.4.iii – there may be arguments that this policy caters to the first half of this sentence – though I would dispute that – it certainly does not pass the test on the second half – since it places companies at risk of substantial expense, and that could deter investment
On section 3.4.v – the board has an objective to promote the development of policies in the best interests of members – no policy that creates substantial legal liability can pass that test
On section 3.4.vii – As per other things I have stated elsewhere – I am far from convinced that this is happening.

Therefore – I have to regard this policy as dangerous – I believe that it should be struck – I believe that the board should intervene if the co-chairs are not willing to take that step – I believe that right now – AfriNIC represents a significant business risk due the fact that this has demonstrated that a segment of the community is willing to push for things which could substantially damage the interests of its members and due to the lack of ability to go elsewhere – and the lack of willingness for intervention to firmly put a stop to this – that risk is deeply amplified.  I believe the fact that the board has one member who sits as co-author to this policy and another that is advocating for it – despite the legal issues raised – still further indicates that this organization represents a real and substantial risk.

And – before anyone goes there with the anti-shutdown policy – let me state as an author of that policy – there are those who claimed that also created risk – the difference is – no risk was ever clearly substantiated and identified – and in my own research and with multiple checks – I could not see that risk.  That policy currently still stands before AFRINIC – and if it can be clearly substantiated in clear wording by the legal council exactly what the risks are with reference to law – then I will withdraw my name from the policy or go for a substantial redraft to sort out the issues.  The major difference though – is these risks – in THIS policy – have been formally highlighted and substantiated – and with that substantiation came a duty for us, as members, and the board, as our elected representatives, to step back from the cliff.

I remain opposed to this policy – and I maintain that this policy and everything surrounding it  – has simply served to highlight just how large a risk we sit with as members in being forced to rely on this organization for resources that are critical to business.

Andrew





From: Owen DeLong <owen at delong.com>
Date: Wednesday, 12 July 2017 at 20:41
To: Andrew Alston <Andrew.Alston at liquidtelecom.com>
Cc: Mike Burns <mike at iptrading.com>, Noah <noah at neo.co.tz>, David Hilario <d.hilario at laruscloudservice.net>, rpd List <rpd at afrinic.net>
Subject: Re: [rpd] Last Call for "AFPUB-2016-GEN-001-DRAFT-04 - Internet Number Resources Review by AFRINIC"



On Jul 12, 2017, at 09:36, Andrew Alston <Andrew.Alston at liquidtelecom.com<mailto:Andrew.Alston at liquidtelecom.com>> wrote:
Since this discussion is now moving in this direction, at this point, I now need to ask some very pointed questions – and these questions are posed not just to the individuals on this list – but also to the board, the legal advisor, and any others who choose to answer them, since I am genuinely curious about the answers.

To ask these questions – I am going to put them in point form as statements – I am not speaking to the accuracy of these statements – I am requesting that each statement be refuted with legal basis or confirmed – I will take either.  I also point out that I had requested opinions on this matter from other sources – some of which have responded – and others which have not – and it is now time to actually go public because of the risks created by this policy.

a.)    It is fact that the prices per annum paid to AfriNIC by larger members are multiple times higher than what they are in certain other registries (there is a price differential of in excess of 20 times between AFRINIC and another registry in certain categories)
b.)    The lack of a bi-directional cross-regional transfer policy puts AfriNIC at direct risk of being in potential violation of the competitions act of 2007 – since AFRINIC is in effect forcing its members to remain using it – and paying the prices which they insist on and which the members have no control over

Mostly true. Your assertion that the members cannot control the price is, however, false. The prices are set by the board which is elected by the members. If the members feel pricing is wrong, they can easily make this an election issue.


c.)
d.)    The fact that other RIR’s DO permit members from other regions to inbound transfer space means that there is choice – and the members of AFRINIC are being held to ransom through the lack of a transfer policy

False. With the exception of RIPE the other RIRs also follow the territorial exclusivity provisions of ICP-2

I'll leave your other points to those who care to comment on them.

Owen

e.)
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