[arin-discuss] [ppml] Counsel statement on Legacy assignments? (fwd)

[Dean Anderson]

FYI (to ppml)

On Mon, 8 Oct 2007, John Curran wrote:

> At 8:08 PM -0400 10/8/07, Dean Anderson wrote:
> >BTW, Curran has corrected himself: There is indeed no formal statement
> >on the subject from ARIN counsel. I've asked for a formal statement to
> >be produced, but haven't heard back whether they will do that.
> 
> Dean - The request was noted and will be brought before the Board.

Good. When can we expect to have this statement?

> >The statement from Sprunk to IETF relies on an informal statement of
> >Counsel and Sprunk omitted significant qualifying context from the
> >informal statement.
> 
> The full transcript (including Counsel's response to the question)
> is available online; you can keep repeating that Steven omitted
> context but a carefully reading doesn't support that conclusion.

I don't know how you can possibly say that with a straight face, given
your correction already. Sprunk said to the IETF:

 "[ARIN] Counsel recently made a statement that it doesn't appear that
  ARIN has any legal obligation to maintain registry services for legacy
  assignments, though it does have a moral one since that was a 
  condition of ARIN's creation.  Counsel also stated, however, it is
  unclear that ARIN could assign those same numbers to someone else
  later."

Sprunk's full message is at
http://www1.ietf.org/mail-archive/web/ietf/current/msg48312.html

In fact, Counsel did not assert "that ARIN [doesn't have] any legal
obligation to maintain registry services for legacy assignments".  
Counsel said nothing of the sort, as the full text below reveals.  

Counsel acknowledges an agreement; a 'government give-away of rights
without strings':

  "I have never seen the United States government give away anything 
   without any strings attached before." 

Counsel then notes that government contract holders' space was probably
'government furnished', and therefore should be returned at the end of
contract. Counsel goes on to acknowledge there are indeed legacy holders
to whom "carrots" rather than sticks must be offered. Implicitly, this
denies the notion that those legacy's have no legal rights, as Sprunk
implies.  Counsel then acknowledges the special unencumbered value of
this Legacy space:

  "Because there's a window coming that intersects with the IPv4 
   exhaustion issue, where for a brief time, these resources will
   actually become financially more valuable if they were unencumbered, 
   and where that value will only be for a limited period."

In this section, Counsel says they can deny free services to people
_without_an_agreement_.  But virtually every Legacy in fact has an
agreement in the form of a paper registration, a kind of license that
doesn't terminate. My FAA-issued pilot's license also never expires.  
All that can be disputed is the terms of the agreement. Further, Mr Ryan
notes that he hasn't thought much about it. He notes that an Act of
Congress may be needed to take back this space. He notes that such an
Act might not be constitutional. He notes he's only started to play with
theories. 

  "it's very clear to me that denial of service by ARIN is legally 
   permitted. In other words, I don't believe we, as the non-profit 
   trying to carry out the community's wishes, have a duty to provide
   free services for legacy address holders. And the denial of those 
   free services to legacy address holders pursuant to their lack of
   agreement is perfectly permitted, in my judgment, as a matter of
   law. I've thought about it that far. I haven't thought carefully
   about what would be the stick beyond denial of those free services.  
   And in my view, the two are quite different. The stick might be that
   we -- for example, I've thought about whether I could ask the United
   States Congress for authority to have the government obtain back
   that which the government gave. I don't know if that's
   constitutional, actually. I mean, I've started to play with different
   theories here."

None of this is very definite.

So from an implied formal statement that 'legacies have no rights', that 
Sprunk reported, we've shown that Atty Ryan actually stated:

 * an acknowledgement of a group of legacy's possessing a government
right with no strings attached
 * notes requirement of an Act of Congress to take back legacy space 
 * notes that such an Act might not be constitutional 
 * notes that he is 'playing with theories' that haven't been thought
through yet.

That's a pretty big change in meaning from Sprunk and Curran. Sprunk has
omitted the significant qualifications and context from the transcript,
as I have cited, and which Curran also omits.  Sprunk's report is indeed
inaccurate and misleading, as I reported. Curran's support for Sprunk's
report is similarly unfounded in fact.

I've identified a number of issues that Sprunk omitted. A close reading
of Sprunk's email doesn't find those issues mentioned. Rather, reading
Sprunk's report to the IETF one gets the impression that
  1. ARIN has in its possession a legal opinion that it in fact doesn't
have, and
  2. that ARIN has made a decision that it in fact hasn't made.

Therefore, Sprunk's message to the IETF is misleading, and Curran stands
corrected.  IETF remains misled and deceived by incorrect reports of the 
actual events.

John Curran has also been misreading the statement, asserting
incorrectly for example, that there was a formal statement when there
wasn't such a statement.  Curran has agreed to correction, but still
asserts mysteriously that Sprunk is correct.

Someone should inform the IETF that Sprunk and Curran have misled them.



The transcript is here
http://www.arin.net/meetings/minutes/ARIN_XIX/ppm1_transcript.html#anchor_13

The complete relevant text is here:

MR. RYAN: Well, from a legal perspective, this is why I love you guys. I 
have never seen the United States government give away anything without 
any strings attached before. And so there's a real question in my mind 
whether -- with regard to some of the legacy address holders who 
received early addresses who were in the Defense or academic community 
but held Defense contracts, whether the issuance of space at that time 
was pursuant to traditional government theories of government-furnished 
material or government-furnished equipment. The paper record is really 
pretty strange when one looks at it. And it does appear -- to the extent 
that I've had an opportunity to look at some of the paperwork -- that 
it's one of the few times in the history of governments that they gave 
away something seemingly without a clear set of strings attached to it. 
I believe that those who are government contractors and who received it 
as government contractors actually have the weakest case to argue that 
they have some enhanced right over other members of the community in 
this regard. And I'm still evaluating the legal theories that address 
that. But looking more generally, there are clearly legacy address 
holders who are not government contractors who did get early resources, 
and who are clearly not covered by GFM, GFE -- any kind of theories with 
regard to that. And with regard to those people, from my legal 
standpoint as a person who has adopted the notion of RFC 2008 and all of 
the sort of learning of the community, I think what we need to do is 
fashion a -- I do think we need to fashion a policy proposal or a series 
of proposals that creates a series of carrots, but not particularly 
sticks, that would be intended to entice legacy holders to bring their 
resources into the system, to give up those resources that they don't 
need, and to actually come out of that process benefited as opposed to 
being treated in a detrimental or in a pejorative or even a negative way 
in any regard. And I think the sooner we adopt such a set of policies 
that are well-thought-out by this community, the better off we'll be 
legally as we address this situation. Because there's a window coming 
that intersects with the IPv4 exhaustion issue, where for a brief time, 
these resources will actually become financially more valuable if they 
were unencumbered, and where that value will only be for a limited 
period. So in that sense as a lawyer, I look forward to working with you 
to try and describe mechanisms that are affirmative, positive, and that 
entice people to feel that it is a civic duty, but maybe even a 
beneficial civic duty, to perform in that way.

MR. CURRAN: Can I ask one question, Steve? And this is asking as Counsel 
to ARIN. You said potentially, for those folks who have received legacy 
addresses who didn't necessarily get them through government contracts 
or GFE, that it might be useful to try to take an approach or a policy 
or a set of policies or actions that entice them to participate in the 
community -- the use of carrots, not sticks. My question is, is the 
shying away from sticks because it's not felt ARIN has any useful ones, 
or is it because of the liability that's entailed by doing that?

MR. RYAN: I've thought a little bit about what a stick might look like 
here. So for example, it's very clear to me that denial of service by 
ARIN is legally permitted. In other words, I don't believe we, as the 
non-profit trying to carry out the community's wishes, have a duty to 
provide free services for legacy address holders. And the denial of 
those free services to legacy address holders pursuant to their lack of 
agreement is perfectly permitted, in my judgment, as a matter of law. 
I've thought about it that far. I haven't thought carefully about what 
would be the stick beyond denial of those free services. And in my view, 
the two are quite different. The stick might be that we -- for example, 
I've thought about whether I could ask the United States Congress for 
authority to have the government obtain back that which the government 
gave. I don't know if that's constitutional, actually. I mean, I've 
started to play with different theories here.





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