[arin-ppml] Counsel identifications of ARIN legal obligations (was: Re: Response to the ARIN counsel's assessment of 2014-1 (Out of region use))

[John Curran]

On Apr 12, 2015, at 1:53 PM, Milton L Mueller <mueller at syr.edu<mailto:mueller at syr.edu>> wrote:
...
Counsel states:
"ARIN is governed by ICANN ICP-2, which calls for establishment of a single RIR to serve each region."

Regional exclusivity is one of the more interesting and far-ranging issues raised by 2014-1. We need to have a clear and honest discussion of it.

Indeed.

Counsel is claiming that ICP-2 requires all usage of numbers to be bound to exclusive RIR service regions

Milton -

    Please provide reference for your statement above; I am unaware of any statement by ARIN's
    Counsel that "ICP-2 requires all usage of numbers to be bound to exclusive RIR service regions”
    i.e. it would appear that you are ascribing statements to ARIN Counsel that were not actually
    made (and ddespite the rather laudable goal of clear and honest discussion.)

    For reference, the full paragraph regarding ICP-2 from the staff and legal assessment follows -

First, ARIN is governed by ICANN ICP-2, which calls for establishment of
a single RIR to serve each region. It further notes that multiple RIRs
serving in single region is likely to lead to difficulty for
co-ordination and co-operation between the RIRs as well as confusion for
the community within the region. The implication of that governance
structure is that each RIR can and should serve its service region. This
policy would allow entities with no real connection to the ARIN's
service region to obtain, for example, increasingly scarce IPv4
resources from ARIN and related registry services. This policy would
result in ARIN effectively providing registry services to other regions,
and thus appears on its face to be inconsistent with ICP-2. ARIN has
obligations to follow the global policy in ICP2, or seek changes in it.

    The paragraphs notes that providing resources which are for use entirely out of region
    may be inconsistent with ICP-2; it makes no statement that _all usage_ of ARIN-issued
    resources are bound to the service region.   Note that organizations that receive numbers
    resources presently from ARIN often do make some use of them in other regions.

    The statement in the staff and legal assessment is with regarding to issuing number
    resources to a party where it is clear that they are solely for use outside the ARIN
    service region, i.e. this is not a case of incidental use, or someone repurposing an
    address block, but instead ARIN knowingly providing registry services and resources
    to other region.

But this claim has no basis in either ICP-2 itself nor in operational practice.
...
- Even assuming that service regions shouldn’t overlap, ICP-2 does not articulate or establish a policy regarding use of number resources outside of a RIR’s service region.

    You are correct -  ICP-2 does not articulate any policy regarding _use_ of number
    resources outside of a RIR’s service region, however, ICP-2 does identify issues
    that can result from RIRs operating in the same region and thus supports the
    actual statements which are within the staff and legal assessment. i.e. to the effect
    that adoption of 2014-1 draft policy would result in ARIN effectively providing registry
    services to other regions, it would appears on its face to be inconsistent with the
    intent and language of ICP-2, as follows below -

"Each region should be served by a single RIR, established under one management and in one location. The establishment of multiple RIRs in one region is likely to lead to:

• fragmentation of address space allocated to the region;
• difficulty for co-ordination and co-operation between the RIRs;
• confusion for the community within the region.”

    Now it is possible that ICP-2 is rather dated and could use to be refreshed to look
    forward to the future which there is not significant new address allocations being
    made every day and where inter-RIR transfers already pose similar issues; however,
    that is probably a much larger discussion and ICP-2 stands as-is in the meantime.

- ICP-2 is not a law, and thus raises no legal issues;

     ARIN’s compliance with its agreements to other parties can result in legal issues for
     ARIN, and ARIN has an agreement with ICANN (ASO MOU) which directly incorporates
     and references ICP-2.

 - ICP-2 is not even a global policy, as its development and adoption by the ICANN board antedates the global policy development process

     ICP-2 is identified in the ASO MOU as containing "agreed requirements and policies”

  It would be helpful to understand if you feel that there is no or nominal risk to the ARIN
  community to setting aside the principles contained in ICP-2; if that is the case, then it
  might be best to simply state that as your position.   The guidance from ARIN Counsel
  that we have obligations with respect to ICP-2 is quite clear, but that doesn’t preclude
  the possiblity that there be nominal actual consequence (w.r.t. our relation with ICANN)
  from doing otherwise.

Thank you,
/John

John Curran
President and CEO
ARIN


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