[arin-ppml] IPv4 Transfer Policy Change to Keep Whois Accurate

[Tom Vest]

Hi Mike,

Thanks for the very detailed response.
Given the level of scrutiny that you've obviously devoted to this particular transfer transaction, and your repeated emphasis on what could be interpreted as gaps and inconsistencies in the accumulated public disclosures about this matter,  I am tempted to assume that you are either a real stickler for legalistic/rule-based/procedural fairness, or a determined champion of transparency and public disclosure -- or perhaps both (?).

And yet your policy proposals seem to exhibit very little of those concerns about procedural fairness and transparency -- but quite a bit of the same sort of fairy tale qualities that you disparage in the official account of the Nortel/Microsoft transfer justification. To paraphrase George Berkeley, if a tree falls in the woods but no one's around to hear it (and/or to witness whether it harms any other trees on the way down), do we still believe that it makes a sound? Or would be better to infer from the silence that trees in the forest have become immune to the laws of gravity, or perhaps that falling trees now spontaneously sublimate into gas as soon as they start tilting, thus making both sound and harm impossible? If we put enough distance between ourselves and the forest so that no sound can ever be heard, does that grant us the license to be indifferent as to which of these is (more) true -- or to take any position that appeals to us, regardless of its (in)consistency with previous observations? 
The same questions come up in the real world. For example, what does the generally low quality of domain-related whois data that is commonly observed in the competitive market for DNS registrar services say about the notion that the price mechanism alone is sufficient to sustain whois meaningful registry/whois participation? [1]. What can be inferred from a situation in which a 100% voluntary (and until very recently, 100% free) registry dedicated to much pricier assets still only attracts participation at levels that would be fatal to an IP number resource registry? HM Land Registry in the UK, for example, just passed the 70% national participation milestone (though participation in some rural counties remains below 50% ) after only 150+ years of membership promotion efforts) [2]. What, if anything, do you think that we can take away from the experiences of other private registries like these? Why should we assume that the private decision making calculus of future transfer market participants will favor registration/disclosure over nondisclosure at rates that are 2-3x higher than observed participation levels in other private registries?

For the record, I agree with you that the next few years are certain to test the current registry/whois system more severely than it has ever been tested in the past. I also believe that that system will continue to represent the best and only means at "our" (individual and/or collective) disposal, both for exercising "macro-prudential" judgment in private/commercial matters, and for serving as informed co-participants in "macro-prudential" coordination and oversight activities -- a.k.a. "industry self-governance." These functions are doubly critical in industries like the ours (which in this sense would include banking/finance) that are highly dependent on the consistency (or at least predictability) of transitive commercial interactions. As long as the "typical" inter-domain packet exchange must traverse 3~4 or more separate business entities in order to be completed, there is no reason to believe that "counterparty scrutiny" (or peer-mediated / "market discipline") alone will be sufficient to keep this industry afloat -- no matter how we reinforce those bilateral levers with (ironclad contracts | secure protocols | interpersonal relationships | faith in the rationality of markets). 

The banking industry learned that lesson the hard way not so long ago -- or at least I'd like to think that parts of it did, even if there hasn't been any obvious change in the pace or direction of financial activity migration away from the "light" of reciprocal disclosure and limited transparency, and into the "shadows" where nobody knows nothing. Regardless, I think that *we* should take advantage of the opportunity to learn from this episode, even if bankers themselves don't. Considering that Internet industry members still enjoy the kind of operational autonomy and freedom of private action that US banks once had -- until their own self-governance mechanisms stopped working (and the Fed took over, c. 1907), the stakes on the line during the next few years really couldn't be higher...

TV, speaking form myself alone 

On May 11, 2011, at 5:12 PM, Mike Burns wrote:

> Hi Tom and welcome to this particular discussion,
> 
> The current legal realities I referenced are the implications of the public information associated with the MS/Nortel deal.
> 
> In this forum I have argued that the public bankruptcy documents reveal that the addresses transferred from Nortel to MS were not originally allocated to Nortel, but represented some accumulation of addresses allocated to Nortel's "predecessors in interest" who were Nortel acquisitions from the 1990s.
> 
> I argued that MS and Nortel negotiated  a deal to sell all the addresses in that accretion, although the public documents reveal that Microsoft was able to bid on an amount smaller than the entire lot.
> 
> After the original asset sale agreement between MS and Nortel was negotiated, ARIN became aware of the transaction, and after some negotiations with the parties at interest, and some changes to the MS/Nortel asset agreement, made a press release claiming that the transfer could proceed under existing ARIN policy.
> 
> ARIN later revealed the policy utilized to be NRPM 8.3, which requires four things which may or may not have actually happened:
> 
> 1. Addresses are supposed to be issued back to ARIN and then reissued to the recipient, Microsoft, and the bankruptcy docs did not reveal this happened in any way.
> 2. Address are supposed to be transferred as a single aggregate, but if the addresses were an assortment of netblocks from prior Nortel acquisitions, this could not have happened.
> 3. Recipients were required to sign an RSA, MS signed a modified LRSA.
> 4. Finally, the requirement at issue here, a needs analysis had to be completed by ARIN, which magically showed that MS qualified for exactly the amount already bid for and negotiated the sale of.
> 
> If they had needed fewer addresses, they could have bid for less than the full pool.
> If they needed more addresses, they should have received an additional ARIN allocation.
> Paraphrasing Goldilocks, the random allocation of addresses to long-ago Nortel acquisitions was "just right."
> 
> My reading of the bankruptcy documents leads me to the conclusion that the bankruptcy judge found that Nortel had the exclusive right to transfer the addresses, even though the judge had not been informed of any ex-post-facto NRPM 8.2 transfer from the original registrants to Nortel. To me, this means he was convinced that ARIN had no rights over transferring the addresses, although ARIN has rights over reflecting that transfer in Whois.  This is consistent with a declaration by the head of ARIN at the time in the Kremen case where he stated that ARIN has no authority over legacy addresses.
> 
> My argument is that the apparent success of RIR stewardship (although I claim many of the allocated and unrouted addresses represent failures here) over the last two decades is laudable and represents an obvious requirement in the stewardship of free pool resources, but is unnecessary in a post-exhaust age where the price of addresses will ensure efficient use.
> 
> I also argue that in the post-exhaust age, conflicts over claims to address rights will likely increase, putting more pressure on Whois to accurately represent reality.
> 
> Regards,
> Mike Burns
> 
> 
> 
> 
> 
> 
> ----- Original Message ----- From: "Tom Vest" <tvest at eyeconomics.com>
> To: "Mike Burns" <mike at nationwideinc.com>
> Cc: "McTim" <dogwallah at gmail.com>; "Owen DeLong" <owen at delong.com>; <arin-ppml at arin.net>
> Sent: Wednesday, May 11, 2011 4:34 PM
> Subject: Re: [arin-ppml] IPv4 Transfer Policy Change to Keep Whois Accurate
> 
> 
> Hi Mike,
> 
> While it may or may not be true that your perspective on this question is consonant with that of "the APNIC community," elements within said community have been championing the same broad policy changes that you're advocating here now since the early 1990s. Thus it would seem that the views that you associate yourself with here couldn't possible have anything to do with "current legal realities" -- unless perhaps by "current" you mean something like "twentieth century."
> 
> Given that historical fact -- and the apparent success of the RIR stewardship mission over the intervening two decades of possible nonconformity with legal reality  -- on what basis could you legitimately claim that abandoning time-tested registry practices that have been integral to maintaining whois accuracy to date represents the best, or perhaps the only way to maintain whois accuracy in the future?
> 
> Alternately, if you actually had in mind some other, more recent legal developments -- which by definition could not have any causal relation to policy arguments that predated them by 10-15 years -- a clarification of exactly what those changes in legal reality are would be much appreciated.
> 
> Thanks,
> 
> TV
> 
> 
> On May 11, 2011, at 3:13 PM, Mike Burns wrote:
> 
>> Hi Owen and McTim,
>> 
>> I, along with the APNIC community, could make the claim that you are abandoning the stewardship role in maintaining Whois accuracy, and sacrificing that stewardship role on the altar of an ARIN needs policy developed for the purposes of  free pool allocations that does not comply with current legal realities.
>> 
>> But charges of abandoning stewardship are inflammatory, and I hope we can keep to actual discussions of the implications of my proposal without casting aspersions.
>> 
>> Let's agree that we all seek the highest standards of stewardship, but disagree on how those standards should be applied.
>> 
>> I think I could characterize your opposition better by saying that you believe the danger of hoarding and speculation outweigh the risk to whois accuracy.
>> Would that be an accurate statement, if not your exclusive objection to the proposal?
>> 
>> Regards,
>> Mike
>> 
>> 
>> 
>> ----- Original Message ----- From: "McTim" <dogwallah at gmail.com>
>> To: "Owen DeLong" <owen at delong.com>
>> Cc: "Mike Burns" <mike at nationwideinc.com>; <arin-ppml at arin.net>
>> Sent: Wednesday, May 11, 2011 2:53 PM
>> Subject: Re: [arin-ppml] IPv4 Transfer Policy Change to Keep Whois Accurate
>> 
>> 
>> On Wed, May 11, 2011 at 9:09 PM, Owen DeLong <owen at delong.com> wrote:
>>> I oppose the policy as written.
>> 
>> +1
>> 
>> 
>>> Abandoning our stewardship role for the sake of making it more likely
>>> people will register their misappropriation of community resources is
>>> like legalizing bank robbery in the hopes that the thieves will pay
>>> income tax on their ill gotten gains.
>> 
>> ;-)
>> 
>> -- 
>> Cheers,
>> 
>> McTim
>> "A name indicates what we seek. An address indicates where it is. A
>> route indicates how we get there." Jon Postel
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