[arin-ppml] AFRINIC And The Stability Of The Internet Number Registry System

[Martin Hannigan]

If we do, can we make TL;DR a requirement?

Over the years, what we all seem to agree on is legacy -discuss was a fail.
Kudos for the realization. ARIN resources should support excellence at
issuing IP numbers and doing it inexpensively and trying to _reduce_ member
attention span required and expense.

"Unsubscribe me please"

Warm regards,

-M<


On Sun, Aug 29, 2021 at 6:15 PM Ronald F. Guilmette <rfg at tristatelogic.com>
wrote:

> In message
> <F04ED1585899D842B482E7ADCA581B84A9C40DDC at newserver.arneill-py.local>
> Michel Py <michel at arneill-py.sacramento.ca.us> wrote:
>
> >+1
>
> I also would like to jump onto this bandwagon and likewise express my
> appreciation for John's publication of his missive in support of AFRINIC.
>
> I have a rather special and personal reason to be interested in these
> matters,
> as some of you no doubt know.
>
> As those who know me can attest, I have for many years now been a
> persistent
> critic of essentially all of the organs of Internet governance, including
> all of the RIRs and also ICANN.  But I like to think that my criticisms
> remain fair and above the belt.  I don't believe in kicking an institution
> when it's down, as AFRINIC is, at present.
>
> Also, as many of you surely also know, back in the latter part of 2019, I,
> together with my South African journalistic collaborator, Jan Vermeulen
> @ MyBroadBand.co.za, publicly exposed the fact that our investigations
> had revealed a years-long insider embezzlement scheme within AFRINIC
> involving the theft of a great deal of valuable IPv4 address space.
>
> Following those public revelations, the insider responsible was fired
> and a police report was filed in relation to that individual's blatantly
> criminal activities.  Those activities quite unambiguously consisted of
> both (a) assigning himself large swaths of IPv4 address space out of
> AFRINIC's free pool and also (b) manipulating the WHOIS records of numerous
> long-abandonded AFRINIC legacy blocks so as to effectively cede control of
> those blocks to various other parties.
>
> To its credit, in the wake of that scandal AFRINIC conducted a detailed and
> conprehensive audit of its records with assistance from APNIC, and made the
> results of that audit public.  It also reclaimed into its free pool all or
> essentially all of the stolen free pool space that I and Jan had identified
> as having been purloined as part of the overall embezzlement scheme.
>
> I only wish that I could say that AFRINIC's Board and management had been
> quite so diligent and responsible in the case of the numerous stolen
> AFRINIC legacy blocks.  Alas, they have not been, the result being that
> many stolen AFRINIC legacy blocks are still in profitable use by the
> recipients of those stolen goods to this day... a fact which I continue
> to remind everyone about at every opportunity, for all the good it will
> do.  (AFRINIC is quite obviously loath to clean up this mess for which
> AFRINIC itself is quite clearly responsible.)
>
> Crime on the Internet DOES pay, it seems, as long as one commits it in
> connection with abandoned legacy blocks.  But enough about that.  I have
> digressed from the real point of this email.
>
> Despite my many disagreements with the various RIRs, e.g. over the provable
> thefts of legacy blocks, over their reluctance to do anything about those,
> and over what I feel is -all- RIR's pervasive and over-the-top
> fetishization
> of secrecy, I am compelled in the present context to set aside all of those
> ongoing concerns and take the side of AFRINIC in all of its several and now
> very public legal conflicts.
>
> For those unaware, there are two such conflicts that substantially pre-date
> the current multi-pronged legal attacks of Lu Heng / Cloud Innovation
> against AFRINIC and its board chaiman and CEO in their personal capacities.
>
> I will not elaborate upon these other two earlier and still ongoing legal
> disputes other than to say that both were brought against AFRINIC by what
> appear to be disgruntled final recipients of some of the same embezzled
> AFRINIC free pool IPv4 blocks that were first identified by myself and
> Jan Vermeulen in the fall of 2019, based upon substantial hard evidence.
> These two Plaintiffs are obviously unhappy that AFRINIC did the Right Thing
> and reclaimed the provably stolen free pool blocks back into the AFRINIC
> free pool so that these blocks could eventually be re-deployed for the
> benefit the AFRINIC community.
>
> Personally, I think that both of these two lawsuits are somewhere beyond
> frivolous and that they are both inevitably doomed to fail, being as they
> are simply attempts to misuse and abuse the Mauritian courts to reclaim
> clearly stolen goods.  Indeed, it is yet another of my many criticisms
> that AFRINIC, for reasons that remain unexplained, has not yet succeded
> at persuading the Mauritian courts to flush these meritless actions down
> the toliet, where they belong, despite both legal actions having been
> pending for numerous months now.
>
> That brings us to the present legal conflict between Lu Heng and his
> company,
> Cloud Innovation, and AFRINIC.
>
> It is hard to competently comment on this legal conflict given that neither
> I nor any other non-party has even been allowed to see any of the relevant
> legal filings.  Contrary to the default status of court documents in just
> about every civilized country, all court documents in Mauritius are sealed
> by default and are not considered public documents.  Fortunately however
> Lu Heng and/or his various public reprentatives, real or fictitious, have
> openly discussed many aspects of Cloud Innovation's multiple Mauritian
> legal
> actions.  Some small clues have also been made public by AFRINIC.  Despite
> these limitations, I'd like to just offer up a few observations based on
> the limited set of publicly known facts.
>
> Firstly, in my rarely humble opinion, and based upon my own personal past
> experience with litigation, it is my belief that when it comes to Cloud
> Innovation's $1.8 billion dollar lawsuit against AFRINIC arising out of
> AFRINIC's attempts to reclaim the 6,291,456 IPv4 addresses that AFRINIC
> previously assigned to the company, Lu Heng hasn't got a legal leg to
> stand on.  In fact, I felt so certain of this that awhile back I even
> went so far as to draft and post my best attempt at a lawyerly brief in
> support of Defendant AFRINIC's (hypothetical) Motion To Dismiss.  This
> prior public post of mine provided all of the several reasons why I believe
> that Cloud Innovation's primary lawsuit MUST fail as a matter of law:
>
>
> https://lists.afrinic.net/pipermail/community-discuss/2021-August/004505.html
>
> The bottom line is that the one and only thing that creates any connection
> between Cloud Innovation and AFRINIC is the RSA and the RSA (Section
> 4(c)(i))
> says quite clearly that AFRINIC can take your space back if you start using
> it for some purpose(s) other than the one(s) you said you were going to use
> it for when it was assigned to you.  That's it.  End of story.
>
> Like a Houdini, Lu Heng is now trying to wriggle his his way free of this
> plain English part of the contract, but unfortunately for him, he really
> can't.  It's not ambiguous or anything.  As part of his attempts to somehow
> wriggle out of the clear and express terms of the contract, he is basically
> doing everything he can to throw sand in the umpire's eyes.  He's making
> claims that the AFRINIC board has acted in bad faith, that it has acted
> in a manner totally outside of community-ratified policy edicts, and that
> it
> has effectively exercised "selective enforcement" against him, in
> particular,
> even though there are lots of other AFRINIC resource holders who, upon
> careful
> review, would also be found to be in violation of the rules.
>
> Personally, I don't think that the Board has acted in bad faith.  It might
> perhaps be an arguable point that the Board made some decisions... prudent
> decisions... based on facts and evidence in a manner that was not
> specifically
> and explicitly codified into formal policy, but I think that's the whole
> point of having a board... so that you have some intelligent and
> knowledgable
> people who can make decisions about the "corner cases" that fall outside of
> the normal course of business and/or that fall outside of the written,
> codified, and fully ratified policies and procedures.  If codified and
> community-ratified policies covered every possible situation and every
> possible eventuality, then you wouldn't even need a boad of directors.
> You could just feed the facts into an AI that had been given the full set
> of RIR policies and out would pop the Right Answer for any given situation,
> no matter how bizzare or unique.
>
> In short, board members are there it make decisions.  They aren't just
> intended to be potted plants or window dressing.
>
> Lu Heng's point about "selective enforcement" is perhaps his best (and
> only?)
> argument, but even in this case it is, or at any rate should be a loser
> in court.  I mean where is it written that life should be fair?  Do we
> criticize the FBI and the DoJ for investigating and prosecuting some
> specific bank robber if they fail to also investigate a small-time thief
> or con-man with equal vigor?  No, of course not.  More to the point, it
> is quite certainly *not* a permissible defense in any court of law that I
> am
> aware of to say that if you have comitted some offense you should be set
> free just because the authorities were, for whatever reasons, not able
> to also and likewise apprehend and prosecute *all* other similar offenders.
>
> There is an old Japanese saying that "The nail that sticks up shall be
> pounded
> down."  Lu Heng made himself a HUGE target by getting himself 6 million+
> valuable IPv4 addresses.  To a certain extent, he himself did a lot to
> insure that he would be very near the front of the line when AFRINIC
> started
> looking around for comapnies that were breaking the rules.  Now he needs
> to live with that outcome, which is at least partially a result of his own
> choices.
>
> Finally I would like to discuss the topic of tactics, and the really quite
> objectionable means that Lu Heng is employing to achieve his ends.
>
> A former attorney of mine once remarked to me that "A lawsuit is war by
> other
> means."  Based upon my own past experiences with litigation I think this is
> accurate.  In civilized societies, no matter the depth of our disagreement,
> hatred, or animosity, as civilized men we submit ourselves to a process
> that
> does not involve us meeting on a field to re-enact one of the blood-soaked
> battle scenes from the movie "Braveheart" (1995).  It must be noted however
> that even in war, there are rules of conduct.  In modern times these have
> been codified into the Geneva Conventions, but the concept of limits, even
> in time of war, dates back hundreds of years.  Limits dictating what is and
> what isn't acceptable behavior in war were even referenced by William
> Shakespeare ih his classic retelling of the tale of The Battle of Agincourt
> which took place in the year 1415.
>
> I believe that Lu Heng, by his legal actions, has placed himself beyond the
> pale of even the civilized form of war that takes place in courtrooms.
>
> Although it is quite certainly Lu Heng's right to legally contest AFRINIC's
> recent attempts to reclaim his IPv4 blocks, via the courts in Mauritius,
> there are two related legal actions that he has undertaken, both of which
> I personally find reprehensible, uncalled for, and entirely outside of what
> I consider civilized behavior.
>
> First, there is this matter of the freeze that was placed by the Mauritian
> courts on all or essentially all of AFRINIC's working capital.  Even just
> the fact that Lu Heng requested this freeze is a sign of bad faith in my
> opinion.  It is one thing to take a party to court in order to secure a
> reasonable and fair judgement if that party has in fact wronged you,
> economically or otherswise.  It is another thing entirely to prevail upon
> some misguided or biased judge in a tricky legal maneuver designed to
> totally hobble one's adversary by freezing all of its assets before the
> merits of either their case or your's has even been considered in court.
> (Note also that Lu Heng obtained this freeze order in an exceptionally
> dubious "ex parte" legal proceeding where AFRINIC was not even allowed to
> be present to defend itself.)
>
> I remain awestruck by the fact that some judge in Mauritius was persuaded
> to enter this freeze order without so much as even making a reasonable
> inquiry about the probability, or lack thereof, that AFRINIC was any kind
> of a flight risk, or that it might up and disappear, in the dead odf night,
> along with all of its operating capital.  If *any* judicial inquiry had
> been made about this possibility, the courts would surely have seen that
> AFRINIC had been in business in Maurituius for some 17 years, and that it
> had offices, desks, chairs, phones, Internet connections, and a staff of
> over 50 souls, all of which would have indicated, quite persuasively, that
> AFRINIC wasn't going anywhere, and that there was neither need for, nor
> cause for its assets to be frozen before it was allowed to make its case
> in court.
>
> In short, I have no idea what the judiciary down there in Mauritius has
> been
> smoking, but whatever it is, it must be some potent stuff.  Or perhaps I am
> just expecting too much from a little speck of sunswept beaches that, in
> total, is 35% smaller than the State of Rhode Island, and which is known
> worldwide primarily for those beautiful beaches, along with tax evasion
> and money laundering.
>
> In any event, the bizzare and throughly unjustified asset freeze is only
> one of the legal actions that Lu Heng has undertaken and which I personally
> find reprehensible.
>
> More recently Lu Heng has also filed suit for defamation against both the
> Chairman of the AFRINIC board of directors, and also the AFRINIC CEO.  The
> damages he is requesting in this separate action are $80 million USD.
>
> REGARDLESS of whether Lu Heng has a valid cause of action in this separate
> defamation suit or not, the suit itself certainly give every appearance of
> being a legal intimidation tactic, intended to bring additional pressure on
> the decision makers at AFRINIC.
>
> Maybe Lu Heng has a valid case for defamation and maybe he doesn't.  As
> noted
> above, even the legal complaint in this separate defamation case is not
> available to the public, based on the Mauritian judicial policy of default
> secrecy.  It is thus essentially impossible for any non-party to know if
> this case has any merit or not.  What can be said is that the -timing- of
> this separate suit against the AFRINIC chairman and the CEO, in their
> personal
> capacities, raises the unavoidable question of whether or not the Mauritian
> courts are being misused and abused for the improper purpose of
> intimidation.
>
> To sum up, it is my belief, based upon my reading of the AFRINIC RSA, that
> AFRINIC was well within its rights to do what it did as far as reclaiming
> Lu Heng's 6+ million IPV4 addresses.  And even if it wasn't, the only
> remedy available to Lu Heng is the termination of the RSA contract between
> Cloud Innovation and AFRINIC, which is exactly what AFRINIC has been
> seeking
> to achieve anyway.
>
> Separately, Lu Heng's actions in seeking and obtaining a freeze of
> AFRINIC's
> working capital, and his separate legal action against the AFRINIC chairman
> and CEO in their personal capacities are both, in my opinion, grotesque
> abuses of the Mauritius judicial system, and it is my hope that they will
> be seen as such by all parties with an interest in these matters.
>
>
> Regards,
> rfg
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