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Anti-Shutdown-01

Details
  • Ref. Name:
    AFPUB-2017-GEN-001-DRAFT-01
  • Status:
    Under Discussion
  • Date:
    10 April 2017
  • Author:
    Andrew Alston – Liquid Telecommunications -
    This e-mail address is being protected from spambots. You need JavaScript enabled to view it
    Ben Roberts – Liquid Telecommunications -
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    Fiona Asonga – TESPOK –
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  • Obsoletes:
    None
  • Amends:
    None
  • Staff Assessment Report

1. Summary of the problem being addressed by this proposal

Over the last few years we have seen more and more governments shutting down the free and open access to the internet in order to push political and other agendas.  These shutdowns have been shown to cause economic damage and hurt the citizens of the affected countries.

 

2. Summary of how this proposal addresses the problem

While the authors of this policy acknowledge that what is proposed is draconian in nature, we feel that the time has come for action to be taken, rather than just bland statements that have shown to have little or no effect.

 

3. Proposal

The policy proposal will modify the CPM as follows:

 

a. Add the following to “CPM 2.0 – General Definitions”:

2.9 Internet Shutdown: A government ordered blocking access to the general internet. Said definition does not preclude a government from censoring content that is not legally permissible within the laws of said country, on the provision that said censorship does not include a law that says “All content irrespective of its source or its nature”.

 

b. Introduce a section 13 to the CPM as follows:

13.0 Internet shutdown order by governments

An internet shutdown is deemed to have occurred when it can be proved that there was an attempt, failed or successful, to restrict access to the internet to a segment of the population irrespective of the provider or access medium that they utilize.

 

13.1 In the event of an internet shutdown performed at the order of a government that is either total or partial:

  1. For a period of 12 months following the end of the shutdown – AFRINIC will allocate no resources to the government of the countryThis also applies to all government owned entities and entities that have direct provable relationships with said government.
  2. In the event of a transfer policy existing, AFRINIC shall not assist or participate in any transfers to any of the entities above.
  3. All sub-allocations of space within said country involving the referred to entities shall equally cease for a period of 12 months.

 

13.2 In the event of a government performing 3 or more such shutdowns in a period of 10 years – all resources to the aforementioned entities shall be revoked and no allocations to said entities shall occur for a period of 5 years.

 

4. Revision History

None

5. References

None

 

***Staff Assessment***


 

Proposal

AFPUB-2017-GEN-001-DRAFT-01

Title

Anti Shutdown 01

URL

https://afrinic.net/en/community/policy-development/policy-proposals/2061-anti-shutdown-01

Assessed

15 May 2017

 

 

1.0 Staff Understanding of the Proposal

The proposal puts in place a process for denying any AFRINIC services to governments that order the shutting down of internet access (in order to push political and/or other agendas).

Staff understands that once an internet shutdown has been proved within the provisions of this policy proposal:

  • The affected government including all its affiliations, such as government owned public services companies like Water and Electricity Utility suppliers, regulators, all ministries, publicly owned hospitals, schools, colleges, universities, telecommunication companies, the judiciary, the central/reserve bank, city or municipal councils, revenue authority services, immigration departments, etc.. will not qualify to receive any number resources from AFRINIC.
  • All number resources issued to the said government and its affiliates listed above shall be seized and returned to the free pool of number resources, and can possibly be reallocated.
  • If the government is issued resources from an LIR, the LIR shall cease assigning (or sub-allocating) resources to the said government.

 

2.0 Staff Comments

  • It's not clear that the measures suggested in the proposal are within AFRINIC’s mandate.
  • Affected government may retaliate against AFRINIC members, or against AFRINIC itself.
  • Uninvolved parties could be punished simply because they have a relationship with the government.
  • Additional risks are identified in the legal analysis (3.0) below.
  • Clause 13.1(c) - "All sub-allocations of space within said country involving the referred to entities shall equally cease for a period of 12 months." Does this apply to just LIR sub-allocations? How about PA assignments? Authors need to clarify on this, since the practice of issuing IP space downstream from an LIR's allocation is commonly through PA assignments.
  • It will be helpful that authors define who a "government owned entity" is or "entities that have direct provable relationships with said government" exactly are, and what process AFRINIC will use to verify this.

 

3.0 Comments from Legal Counsel

If the proposal is ratified by the Board, AFRINIC will face serious difficulties in its implementation as it places AFRINIC in opposition to the legal entity called government. More importantly, a government has rights which it would defend in the event that it believes that prejudice has been caused to it and that it was in its rights to act as it did.

AFRINIC will have, potentially, to face serious legal actions from governments/governmental authorities, where the latter is the subject of the (13.1 & 13.2) sanctions laid down in the proposal.

a. There is a possibility that AFRINIC may have to face civil suits in multiple jurisdictions where the sanctions proposed (at 13.1 & 13.2) are implemented.

    • Governments/Governmental Authorities may claim that these sanctions have caused them serious prejudice and in consequence seek compensation for such prejudice before the competent authorities.
    • Faced with such claims for compensation, AFRINIC, which is not protected by any immunity, will have to defend such actions. In so doing, it will have to prove:
      1. That there was a shutdown, which it seems can be established.
      2. That either that the governments/governmental authorities had no right to do so or had no justification to do so. It is impossible for AFRINIC to prove this. Though this is not mentioned in the text of the proposal, these are the only defences which AFRINIC has.

b. The proposed definition of an “internet shutdown” requires proof of the following.

    • “An attempt, failed or successful to restrict etc…” Question is how can AFRINIC prove an attempt? Where will the evidence come from? Obviously not from governments or their officials.
    • The mere fact that there has been a shutdown is not enough to trigger the “13.1” and “13.2” sanctions of the proposal. Additionally, proof that the shutdown was “performed at the order of a government” has to be established.
    • Would there be an investigation first, who will investigate?
    • Where will the evidence come from?

 

c. Any government of a sovereign State has at its disposal, within its Constitution and the laws made thereunder, the possibility to raise such defenses as confidentiality, Official Secrets Act, State Defence, public safety or public order to justify any of its acts/omissions.

d. Courts will very rarely be ready to venture in the examination of the acts/omissions of a Sovereign State acting through its executive.


4.0 Implementation:

Proposal will put AFRINIC at significant legal exposure from affected governments and cannot be implemented as written.

 

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