[arin-ppml] Draft Policy 2011-7 Compliance Requirement

[Frank Bulk]

Then we just need to cognizant that we're leaving it to ARIN staff's
discretion as to what is interpreted to be "materially out of compliance"
and that this introduces a gray area which is much more disputable than
applying the standard ARIN uses with applications. 

Frank

-----Original Message-----
From: arin-ppml-bounces at arin.net [mailto:arin-ppml-bounces at arin.net] On
Behalf Of Owen DeLong
Sent: Sunday, May 29, 2011 12:26 AM
To: Stephen Sprunk
Cc: arin-ppml at arin.net
Subject: Re: [arin-ppml] Draft Policy 2011-7 Compliance Requirement


On May 28, 2011, at 1:46 PM, Stephen Sprunk wrote:

> On 28-May-11 01:56, Frank Bulk wrote:
>> In regard to ARIN counsel's discussion about "lack of compliance" -- ARIN
staff make that determination on new requests each and every day (i.e. the
request meets the policies or they don't).  It's not clear to me how
reviewing a current resource holder's compliancy requires "black and white",
or only to look at a subset of policies.  To be sure, a review does not
include the applicant's documentation, but that could be requested if what's
readily available is insufficient to verify compliancy.
> 
> NRPM 12.4 and the original version of this proposal use the expression
> "materially out of compliance".  It is fairly easy to determine if
> someone is out of compliance, but how does staff (or a court, if ARIN is
> sued) determine whether the non-compliance is material?  That was the
> point of 12.4(a), which this proposal would rename to 12.4.1.  The
> authors' intent was to leave that to staff's discretion, which is known
> to be rather liberal.
> 
The intent of requiring an organization to be materially out of compliance
was so that an organization that was out of compliance, but, by a reasonably
small amount and/or likely to grow into compliance in a relatively short
period of time wouldn't have to undergo renumbering/reclamation
and then submit another request in short order.

> To strike the word "materially" from this policy, as the most recent
> revision of this proposal does, will radically alter its effect by
> forcing ARIN staff to do evil and/or stupid things.  If the current
> wording is legally challenging, I would suggest that it is a better
> course of action to find a more defensible wording rather than to
> abandon the idea of letting smart people do smart things.
> 
Yes, this is a very bad change, IMHO.

I don't believe that the word materially is a problem and Steve Ryan
didn't have a problem with it in the original section 12.

>> I agree that words "fraud" and "materially" are loaded words and that by
itself requires that this proposal be re-written.
> 
> Those words are in the current text, so they are not defects in this
> proposal per se, and editorial changes should be separate from
> deliberate policy changes.
> 

Correct. I don't see them as particularly loaded in the way they were
implemented in the original section 12 and I see no reason to shy 
away from them here.

Owen

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