[arin-ppml] On USG 'granting of rights' (was: ARIN-PPML 2015-2)

[John Curran]

On Jun 2, 2015, at 11:48 AM, Mike Burns <mike at iptrading.com<mailto:mike at iptrading.com>> wrote:

First a diversion:

I continue to hear RFC2050 used to buttress the continuance of needs testing today.

Mike -

I do not know if you are speaking of my reference to RFC 2050, but if that’s the case, I should be
clear and note that in no way was I citing that as an argument in favor (or against for that matter)
needs-testing for transfers today; it was simply to refute a statement regarding Jon Postel’s
expectations on transfers and need-testing back in the time when ARIN was founded.

I have no view either way on the merits of needs-testing for transfers, but am obligated to defend
the community’s right to have the registry administered in accordance with its policies (which is a
very different topic indeed! :-)

Onto this discussion:

What is happening in this discussion is, in my mind, the tail wagging the dog.

It’s as if your local property registrar in your county has determined that when you buy a property, you are really buying the listing at the registrar’s office.
Instead of the fact that you are buying real property and the registrar is merely registering your ownership, not providing your rights to it. Just because IP addresses are not tangible, like real property, doesn’t mean they only exist as database entries in a registrar’s list.

Even intangible property rights can be described - the right to license a music piece for performance,
the right to minerals or oil beneath property, the right to use a certain mark in commerce, etc.

There’s no question that there can be rights that are additional to the rights associated with the address
block entry in the registry, however, no one has clearly described what additional rights these might be
or how these rights are obtained.  I do appreciate that you attempt to do so below, but ultimately your
position is predicated upon the US Government, and the USG itself has taken a very different stance...

What David and other are saying is that your rights are to an exclusive set of numbers to be used on the Internet, not to a registry listing.

Rights to an exclusive set of numbers to be used on the Internet?  How exactly is this right being
granted by the RIR along with the issued address block, and what obligation does it impose on
others?  A legal right is (roughly) interest in a claim that compels someone else to do (or not do)
a particular course of action, a claim for which the state provides a remedy in court.   You seem to
assert that there is a right granted to “use the numbers on the Internet”, but that would require some
legal basis to the right such that a court would recognize it and be willing to enforce against the
parties that make up the global Internet.

So the answer to John’s question of what is being transferred?  The exclusive right to use a block of numbers on the Internet, deriving from a continuous chain-of-custody of rights granted legally by the US Department of Commerce. For legacy holders, anyway. For non-legacy holders, their rights derive from the RSA with ARIN, and ARIN’s rights derive from their MoU with the US Department of Commerce.

That would imply that the US Department of Commerce (US DoC) has the ability to issue these
rights, including the imposition of obligations to honor these rights on the parties of “the Internet”
that use IP addresses.

Note that such a position doesn’t match that of the US Government; in fact, we’re in the midst of
planning for the transition of the stewardship of the IANA functions, and so we access to quite
contemporary information from the US DoC which contradicts your position - for example, the
letter early this month from DoC/NTIA to Congress that notes that “NTIA has no legal or statutory
responsibility” with respect to the IANA functions...
<http://2010-2014.commerce.gov/sites/default/files/documents/2014/may/views_letter_on_h.r._4342.pdf>

Absent such legislative authority, there is no way that the IANA technical functions place obligations
on even US businesses or the public in this area, let alone the ability to obligate the global community
to obey its dictate regarding who gets “the exclusive right to use a block of numbers on the Internet”
(as you put it)

You also seem to believe that there’s an MOU between ARIN and the Department of Commerce - that’s
not the case, ARIN was founded by the community as a cooperative endeavor to administer the registry.
Per the USG/NSF press release - "Creation of ARIN will give the users of IP numbers (mostly Internet
service providers, corporations and other large institutions) a voice in the policies by which they are
managed and allocated within the North American region.”
 <https://www.nsf.gov/news/news_summ.jsp?cntn_id=102819>

The actual US Government policy with regards to Internet numbers has quite similar language; review
the "United States Government’s Internet Protocol Numbering Principles” as provided by DoC/NTIA -
 <http://www.ntia.doc.gov/blog/2012/united-states-government-s-internet-protocol-numbering-principles>

You will find included in the principles the following statements -

“
   As we continue to transition to this next-generation Internet routing system, it is important to clarify the United States Government’s (USG) position on the development of Internet technical standards and policies:

• We continue to believe that the proper model for the development of Internet technical standards and policies, including those related to IP numbers, is the multistakeholder model.

• The five Regional Internet Registries (RIRs), via their multistakeholder processes, are responsible for developing policies for the use of IP numbers within their respective specific geographic regions.

• The American Registry for Internet Numbers (ARIN) is the RIR for Canada, many Caribbean and North Atlantic islands, and the United States. The USG participates in the development of and is supportive of the policies, processes, and procedures agreed upon by the Internet technical community through ARIN.
”

i.e. it is quite plain that the USG expects the registry to be a cooperative multi-stakeholder activity, with the
USG as another participant in this community, not an issuer of any form of governmental licenses or grants.

...
 Imagine a though experiment. I received an allocation from Jon Postel, acting under the authority of the US Department of Commerce. I have an email from him with the block numbers I was assigned. I use the addresses for five years but then find that they were not properly recorded by Mr. Postel, or were incorrectly transferred to a subsequent registrar like ARIN.  Can’t I take the original email (the contract here) to a judge and demand that the registry be changed to match my email?  Or, since the rights are “provided” by ARIN, wouldn’t I be out of luck, since the rights are to a registry entry, and the entry doesn’t match my email? In other words, which is primary, a contract granting me exclusive use of numbers on the Internet, or ARIN’s control of their registry system?

Actually, that experiment is quite easy (as we _are_ the formal successor registry that Jon helped form.)
In such an circumstance, we’d correct the clerical error if such were possible and mitigate impact if not.
The fact that you were assigned the block in the registry provides you the rights to be associated with that
block and if you didn’t transfer or if it did not get recorded correctly, you still have the right of being the party
assigned the block (and we recognize and honor that right as the successor registry.)

If you feel that there are other rights (e.g. the ability to be assigned an address block and not be subject to
any registry policy ever), then that would be something you’d probably need to seek redress for…   I’ll note
that we’ve heard it before, and to date ARIN has not been ordered or subject to a judgement to do anything
other than follow the community-developed policies for all resources in the registry.

Thanks!
/John

John Curran
President and CEO
ARIN


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