<div dir="ltr"><div><br></div><div><br></div><div>If we do, can we make TL;DR a requirement?</div><div><br></div><div>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.<br></div><div><br></div><div>"Unsubscribe me please"</div><div><br></div><div>Warm regards,</div><div><br></div><div>-M<</div><div><br></div></div><br><div class="gmail_quote"><div dir="ltr" class="gmail_attr">On Sun, Aug 29, 2021 at 6:15 PM Ronald F. Guilmette <<a href="mailto:rfg@tristatelogic.com">rfg@tristatelogic.com</a>> wrote:<br></div><blockquote class="gmail_quote" style="margin:0px 0px 0px 0.8ex;border-left:1px solid rgb(204,204,204);padding-left:1ex">In message <F04ED1585899D842B482E7ADCA581B84A9C40DDC@newserver.arneill-py.local><br>
Michel Py <<a href="mailto:michel@arneill-py.sacramento.ca.us" target="_blank">michel@arneill-py.sacramento.ca.us</a>> wrote:<br>
<br>
>+1<br>
<br>
I also would like to jump onto this bandwagon and likewise express my<br>
appreciation for John's publication of his missive in support of AFRINIC.<br>
<br>
I have a rather special and personal reason to be interested in these matters,<br>
as some of you no doubt know.<br>
<br>
As those who know me can attest, I have for many years now been a persistent<br>
critic of essentially all of the organs of Internet governance, including<br>
all of the RIRs and also ICANN. But I like to think that my criticisms<br>
remain fair and above the belt. I don't believe in kicking an institution<br>
when it's down, as AFRINIC is, at present.<br>
<br>
Also, as many of you surely also know, back in the latter part of 2019, I,<br>
together with my South African journalistic collaborator, Jan Vermeulen<br>
@ <a href="http://MyBroadBand.co.za" rel="noreferrer" target="_blank">MyBroadBand.co.za</a>, publicly exposed the fact that our investigations<br>
had revealed a years-long insider embezzlement scheme within AFRINIC<br>
involving the theft of a great deal of valuable IPv4 address space.<br>
<br>
Following those public revelations, the insider responsible was fired<br>
and a police report was filed in relation to that individual's blatantly<br>
criminal activities. Those activities quite unambiguously consisted of<br>
both (a) assigning himself large swaths of IPv4 address space out of<br>
AFRINIC's free pool and also (b) manipulating the WHOIS records of numerous<br>
long-abandonded AFRINIC legacy blocks so as to effectively cede control of<br>
those blocks to various other parties.<br>
<br>
To its credit, in the wake of that scandal AFRINIC conducted a detailed and<br>
conprehensive audit of its records with assistance from APNIC, and made the<br>
results of that audit public. It also reclaimed into its free pool all or<br>
essentially all of the stolen free pool space that I and Jan had identified<br>
as having been purloined as part of the overall embezzlement scheme.<br>
<br>
I only wish that I could say that AFRINIC's Board and management had been<br>
quite so diligent and responsible in the case of the numerous stolen<br>
AFRINIC legacy blocks. Alas, they have not been, the result being that<br>
many stolen AFRINIC legacy blocks are still in profitable use by the<br>
recipients of those stolen goods to this day... a fact which I continue<br>
to remind everyone about at every opportunity, for all the good it will<br>
do. (AFRINIC is quite obviously loath to clean up this mess for which<br>
AFRINIC itself is quite clearly responsible.)<br>
<br>
Crime on the Internet DOES pay, it seems, as long as one commits it in<br>
connection with abandoned legacy blocks. But enough about that. I have<br>
digressed from the real point of this email.<br>
<br>
Despite my many disagreements with the various RIRs, e.g. over the provable<br>
thefts of legacy blocks, over their reluctance to do anything about those,<br>
and over what I feel is -all- RIR's pervasive and over-the-top fetishization<br>
of secrecy, I am compelled in the present context to set aside all of those<br>
ongoing concerns and take the side of AFRINIC in all of its several and now<br>
very public legal conflicts.<br>
<br>
For those unaware, there are two such conflicts that substantially pre-date<br>
the current multi-pronged legal attacks of Lu Heng / Cloud Innovation<br>
against AFRINIC and its board chaiman and CEO in their personal capacities.<br>
<br>
I will not elaborate upon these other two earlier and still ongoing legal<br>
disputes other than to say that both were brought against AFRINIC by what<br>
appear to be disgruntled final recipients of some of the same embezzled<br>
AFRINIC free pool IPv4 blocks that were first identified by myself and<br>
Jan Vermeulen in the fall of 2019, based upon substantial hard evidence.<br>
These two Plaintiffs are obviously unhappy that AFRINIC did the Right Thing<br>
and reclaimed the provably stolen free pool blocks back into the AFRINIC<br>
free pool so that these blocks could eventually be re-deployed for the<br>
benefit the AFRINIC community.<br>
<br>
Personally, I think that both of these two lawsuits are somewhere beyond<br>
frivolous and that they are both inevitably doomed to fail, being as they<br>
are simply attempts to misuse and abuse the Mauritian courts to reclaim<br>
clearly stolen goods. Indeed, it is yet another of my many criticisms<br>
that AFRINIC, for reasons that remain unexplained, has not yet succeded<br>
at persuading the Mauritian courts to flush these meritless actions down<br>
the toliet, where they belong, despite both legal actions having been<br>
pending for numerous months now.<br>
<br>
That brings us to the present legal conflict between Lu Heng and his company,<br>
Cloud Innovation, and AFRINIC.<br>
<br>
It is hard to competently comment on this legal conflict given that neither<br>
I nor any other non-party has even been allowed to see any of the relevant<br>
legal filings. Contrary to the default status of court documents in just<br>
about every civilized country, all court documents in Mauritius are sealed<br>
by default and are not considered public documents. Fortunately however<br>
Lu Heng and/or his various public reprentatives, real or fictitious, have<br>
openly discussed many aspects of Cloud Innovation's multiple Mauritian legal<br>
actions. Some small clues have also been made public by AFRINIC. Despite<br>
these limitations, I'd like to just offer up a few observations based on<br>
the limited set of publicly known facts.<br>
<br>
Firstly, in my rarely humble opinion, and based upon my own personal past<br>
experience with litigation, it is my belief that when it comes to Cloud<br>
Innovation's $1.8 billion dollar lawsuit against AFRINIC arising out of<br>
AFRINIC's attempts to reclaim the 6,291,456 IPv4 addresses that AFRINIC<br>
previously assigned to the company, Lu Heng hasn't got a legal leg to<br>
stand on. In fact, I felt so certain of this that awhile back I even<br>
went so far as to draft and post my best attempt at a lawyerly brief in<br>
support of Defendant AFRINIC's (hypothetical) Motion To Dismiss. This<br>
prior public post of mine provided all of the several reasons why I believe<br>
that Cloud Innovation's primary lawsuit MUST fail as a matter of law:<br>
<br>
<a href="https://lists.afrinic.net/pipermail/community-discuss/2021-August/004505.html" rel="noreferrer" target="_blank">https://lists.afrinic.net/pipermail/community-discuss/2021-August/004505.html</a><br>
<br>
The bottom line is that the one and only thing that creates any connection<br>
between Cloud Innovation and AFRINIC is the RSA and the RSA (Section 4(c)(i))<br>
says quite clearly that AFRINIC can take your space back if you start using<br>
it for some purpose(s) other than the one(s) you said you were going to use<br>
it for when it was assigned to you. That's it. End of story.<br>
<br>
Like a Houdini, Lu Heng is now trying to wriggle his his way free of this<br>
plain English part of the contract, but unfortunately for him, he really<br>
can't. It's not ambiguous or anything. As part of his attempts to somehow<br>
wriggle out of the clear and express terms of the contract, he is basically<br>
doing everything he can to throw sand in the umpire's eyes. He's making<br>
claims that the AFRINIC board has acted in bad faith, that it has acted<br>
in a manner totally outside of community-ratified policy edicts, and that it<br>
has effectively exercised "selective enforcement" against him, in particular,<br>
even though there are lots of other AFRINIC resource holders who, upon careful<br>
review, would also be found to be in violation of the rules.<br>
<br>
Personally, I don't think that the Board has acted in bad faith. It might<br>
perhaps be an arguable point that the Board made some decisions... prudent<br>
decisions... based on facts and evidence in a manner that was not specifically<br>
and explicitly codified into formal policy, but I think that's the whole<br>
point of having a board... so that you have some intelligent and knowledgable<br>
people who can make decisions about the "corner cases" that fall outside of<br>
the normal course of business and/or that fall outside of the written,<br>
codified, and fully ratified policies and procedures. If codified and<br>
community-ratified policies covered every possible situation and every<br>
possible eventuality, then you wouldn't even need a boad of directors.<br>
You could just feed the facts into an AI that had been given the full set<br>
of RIR policies and out would pop the Right Answer for any given situation,<br>
no matter how bizzare or unique.<br>
<br>
In short, board members are there it make decisions. They aren't just<br>
intended to be potted plants or window dressing.<br>
<br>
Lu Heng's point about "selective enforcement" is perhaps his best (and only?)<br>
argument, but even in this case it is, or at any rate should be a loser<br>
in court. I mean where is it written that life should be fair? Do we<br>
criticize the FBI and the DoJ for investigating and prosecuting some<br>
specific bank robber if they fail to also investigate a small-time thief<br>
or con-man with equal vigor? No, of course not. More to the point, it<br>
is quite certainly *not* a permissible defense in any court of law that I am<br>
aware of to say that if you have comitted some offense you should be set<br>
free just because the authorities were, for whatever reasons, not able<br>
to also and likewise apprehend and prosecute *all* other similar offenders.<br>
<br>
There is an old Japanese saying that "The nail that sticks up shall be pounded<br>
down." Lu Heng made himself a HUGE target by getting himself 6 million+<br>
valuable IPv4 addresses. To a certain extent, he himself did a lot to<br>
insure that he would be very near the front of the line when AFRINIC started<br>
looking around for comapnies that were breaking the rules. Now he needs<br>
to live with that outcome, which is at least partially a result of his own<br>
choices.<br>
<br>
Finally I would like to discuss the topic of tactics, and the really quite<br>
objectionable means that Lu Heng is employing to achieve his ends.<br>
<br>
A former attorney of mine once remarked to me that "A lawsuit is war by other<br>
means." Based upon my own past experiences with litigation I think this is<br>
accurate. In civilized societies, no matter the depth of our disagreement,<br>
hatred, or animosity, as civilized men we submit ourselves to a process that<br>
does not involve us meeting on a field to re-enact one of the blood-soaked<br>
battle scenes from the movie "Braveheart" (1995). It must be noted however<br>
that even in war, there are rules of conduct. In modern times these have<br>
been codified into the Geneva Conventions, but the concept of limits, even<br>
in time of war, dates back hundreds of years. Limits dictating what is and<br>
what isn't acceptable behavior in war were even referenced by William<br>
Shakespeare ih his classic retelling of the tale of The Battle of Agincourt<br>
which took place in the year 1415.<br>
<br>
I believe that Lu Heng, by his legal actions, has placed himself beyond the<br>
pale of even the civilized form of war that takes place in courtrooms.<br>
<br>
Although it is quite certainly Lu Heng's right to legally contest AFRINIC's<br>
recent attempts to reclaim his IPv4 blocks, via the courts in Mauritius, <br>
there are two related legal actions that he has undertaken, both of which<br>
I personally find reprehensible, uncalled for, and entirely outside of what<br>
I consider civilized behavior.<br>
<br>
First, there is this matter of the freeze that was placed by the Mauritian<br>
courts on all or essentially all of AFRINIC's working capital. Even just<br>
the fact that Lu Heng requested this freeze is a sign of bad faith in my<br>
opinion. It is one thing to take a party to court in order to secure a<br>
reasonable and fair judgement if that party has in fact wronged you,<br>
economically or otherswise. It is another thing entirely to prevail upon<br>
some misguided or biased judge in a tricky legal maneuver designed to<br>
totally hobble one's adversary by freezing all of its assets before the<br>
merits of either their case or your's has even been considered in court.<br>
(Note also that Lu Heng obtained this freeze order in an exceptionally<br>
dubious "ex parte" legal proceeding where AFRINIC was not even allowed to<br>
be present to defend itself.)<br>
<br>
I remain awestruck by the fact that some judge in Mauritius was persuaded<br>
to enter this freeze order without so much as even making a reasonable<br>
inquiry about the probability, or lack thereof, that AFRINIC was any kind<br>
of a flight risk, or that it might up and disappear, in the dead odf night,<br>
along with all of its operating capital. If *any* judicial inquiry had<br>
been made about this possibility, the courts would surely have seen that<br>
AFRINIC had been in business in Maurituius for some 17 years, and that it<br>
had offices, desks, chairs, phones, Internet connections, and a staff of<br>
over 50 souls, all of which would have indicated, quite persuasively, that<br>
AFRINIC wasn't going anywhere, and that there was neither need for, nor<br>
cause for its assets to be frozen before it was allowed to make its case<br>
in court.<br>
<br>
In short, I have no idea what the judiciary down there in Mauritius has been<br>
smoking, but whatever it is, it must be some potent stuff. Or perhaps I am<br>
just expecting too much from a little speck of sunswept beaches that, in<br>
total, is 35% smaller than the State of Rhode Island, and which is known<br>
worldwide primarily for those beautiful beaches, along with tax evasion<br>
and money laundering.<br>
<br>
In any event, the bizzare and throughly unjustified asset freeze is only<br>
one of the legal actions that Lu Heng has undertaken and which I personally<br>
find reprehensible.<br>
<br>
More recently Lu Heng has also filed suit for defamation against both the<br>
Chairman of the AFRINIC board of directors, and also the AFRINIC CEO. The<br>
damages he is requesting in this separate action are $80 million USD.<br>
<br>
REGARDLESS of whether Lu Heng has a valid cause of action in this separate<br>
defamation suit or not, the suit itself certainly give every appearance of<br>
being a legal intimidation tactic, intended to bring additional pressure on<br>
the decision makers at AFRINIC.<br>
<br>
Maybe Lu Heng has a valid case for defamation and maybe he doesn't. As noted<br>
above, even the legal complaint in this separate defamation case is not<br>
available to the public, based on the Mauritian judicial policy of default<br>
secrecy. It is thus essentially impossible for any non-party to know if<br>
this case has any merit or not. What can be said is that the -timing- of<br>
this separate suit against the AFRINIC chairman and the CEO, in their personal<br>
capacities, raises the unavoidable question of whether or not the Mauritian<br>
courts are being misused and abused for the improper purpose of intimidation.<br>
<br>
To sum up, it is my belief, based upon my reading of the AFRINIC RSA, that<br>
AFRINIC was well within its rights to do what it did as far as reclaiming<br>
Lu Heng's 6+ million IPV4 addresses. And even if it wasn't, the only<br>
remedy available to Lu Heng is the termination of the RSA contract between<br>
Cloud Innovation and AFRINIC, which is exactly what AFRINIC has been seeking<br>
to achieve anyway.<br>
<br>
Separately, Lu Heng's actions in seeking and obtaining a freeze of AFRINIC's<br>
working capital, and his separate legal action against the AFRINIC chairman<br>
and CEO in their personal capacities are both, in my opinion, grotesque<br>
abuses of the Mauritius judicial system, and it is my hope that they will<br>
be seen as such by all parties with an interest in these matters.<br>
<br>
<br>
Regards,<br>
rfg<br>
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