[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 11:01 PM, Milton L Mueller <mueller at syr.edu<mailto:mueller at syr.edu>> wrote:

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;

MM: When Counsel says “This policy would result in ARIN effectively providing registry services to other regions” and “each RIR should serve its region” I don’t think it is unreasonable to interpret that as meaning that all number services should be obtained from the RIR where the numbers will be used.

Milton -

“ICP-2 requires all usage of numbers to be bound to exclusive RIR service regions” is what you attribute to
Counsel, and it is very different issue than "ARIN effectively providing registry services to other regions” -
two completely different concepts.

One is regarding how a recipient may make use of their assigned address space whereas the other deals
with an RIR's behavior.   You conflate this two distinct concepts to arrive at a claim which was not made in
the staff & legal report, nor does the constraint how parties use their address blocks appear in ICP-2.

MM: Does this mean that both you and the Counsel are not claiming that all usage of numbers must be bound to the service region? I hope so.
Please explain why this is not inconsistent with Counsel’s interpretation of ICP-2.

Again, how a party makes use of assigned space is not directly within ARIN’s control once resources
are issued, whereas ARIN having policies which issue space knowingly for use entirely within another
region is completely within ARIN’s control and raises a valid question about commitment to the principles
in ICP-2.

MM: As you should know, the policy requires some presence in the region. It is designed to aid organizations that want one-stop shopping.

It does indeed require some presence in our region, but draft policy 2014-1 would specifically have ARIN
issue number resources entirely for use in another region.

MM: Both you and counsel keep ignoring the requirement for some kind of presence and established relationship with ARIN.   …

The required presence and established relationship with ARIN only affects who may apply, it does not
change the fact that the draft policy, if adopted, would have ARIN issue numbers resources entirely for
use in another region.   It is ARIN knowing issuing resources entirely for use within another region which
raises the question about consistency with the intent and language of ICP-2.

MM: As for this:

"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.”

MM: Remember, ICP-2 was written to deal with the establishment of new RIRs. I would agree that creating a new RIR that serves, say, Kansas and Nebraska and giving it a distinct set of number blocks to distribute would fragment the distribution of address space. But that Is not what this policy (2014-1) is proposing. ICP-2 is basically not the right standard to use in assessing this policy. You and Counsel have seized on it in an attempt to find an argument for regional exclusivity, but it is not the right instrument. If you want a global policy that says RIRs must confine address distribution to entities mainly in their region, go create one. It doesn’t exist yet.

Actually, the relevant portion of ICP-2 shown above is quite clear regarding intent for the servicing
of regions by RIRs.  You might not like what it says, or wish that it said something else, but it is an
agreed policy to which ARIN is a party.   It is not clear if setting aside the requirements therein will
have consequences to ARIN’s ability to perform its mission, but it is plain that issuing space for use
entirely within another region is a departure from the intent of the policy.

As I said, ICP-2 does not say anything definitive about the issue we are debating in 2014-1. Please stop using it for that purpose.

I understand your position, but do disagree as noted above.

MM: You misunderstand my position, which is that ICP-2 does not establish any principles regarding out of region use policies of existing RIRs

“use” is about what an applicant does with their number resources.  It is unclear if ICP-2 was ever
intend to effect or constrain how recipients actually used resources received from any RIR.

“service region” is about where an RIR issues number resources, and it is quite clear that ICP-2
is intends that 'Each region should be served by a single RIR’.    2014-1 would have ARIN  issue
space knowingly and entirely within another region - whether that’s a good thing or a bad thing
is something for the community to consider, but it would be contrary to intent to language and
intent of ICP-2.

Here is what I have concluded from our exchange:
•       Neither you nor the Counsel are claiming that all usage of numbers must be bound to the service region

Milton - it is you who incorrectly stated that "Counsel is claiming that ICP-2 requires all usage of
numbers to be bound to exclusive RIR service regions”, i.e. a statement which is not reflected in
actual staff and legal assessment for 2014-1 nor in ARIN’s practices.   ICP-2 has no requirements
about how parties use their number resources; it has requirements only about how RIR’s operate.

When asked to provide a reference supporting your claim of Counsel’s position, you were unable
to provide any.   This is not surprising, since the actual staff and legal assessment simply notes
that providing resources which are for use entirely out of region may be inconsistent with ICP-2;
it makes no statement at all regarding usage of ARIN-issued resources being bound to the service
region.

I cannot tell if you are still unable to distinguish the difference between policy that affects what
and how ARIN does its mission versus your incorrect statement attributed to Counsel that ARIN
somehow constrains how recipients make use of their assigned number blocks, one can hope
reading this response will help in that regard.

•       You are not refuting or contesting my claim that the legal assessment mistakenly asserted that the policy would allow entities with “no real connection” to the ARIN region to use it as a registry.

There is much in your initial message and followup that I did not respond to - please do not consider
that any form of endorsement or acceptance of your assertions therein.   I only responded with respect
to your ICP-2 remarks due to the false claim of statements made by Counsel.

•       We have agreed that ICP-2 is not a global policy, but you do consider it binding as part of the ASO MoU
•       You still think ICP-2 is relevant to 2014-1, and I don’t.
Fair summary?

And with regards to your acknowledging your creation of claims by Counsel that were in fact not made?
Did you come to any conclusions in that regard, and do intend at some point to correct your remarks?

ARIN today issues number resources to parties that are sometimes used by parties outside the ARIN service
region.   ARIN does not issue resources based on demand out of region, but a global enterprise can take
number resources today and use them anywhere, and 2014-1 is not necessary to enable that.

What 2014-1 would allow is for an organization with a minimal level of resources in region to request and
obtain number resources from ARIN entirely based on demand and for use outside of the ARIN region.
This would have ARIN effectively providing registry services to another region, which plainly does not
confirm with the language and intent of ICP-2.   The implications, if any, to ARIN’s ability to perform its
mission that may result by proceeding contrary to ICP-2 are unclear at this time.

Thanks!
/John

John Curran
President and CEO
ARIN




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