[arin-ppml] Draft Policy ARIN-2015-5: Out of region use

[Jason Schiller]

The primary objection to this policy's successor was legal concerns
surrounding the strength on the nexus to the region, liability to ARIN ,
and an inability to pursue legal redress (apologies if I didn't get that
quite right).

Does this policy mitigate those concerns?

Is it possible to get an early legal assessment (noting the policy and the
assessment may change prior the the next meeting)?

Thanks,

__Jason

On Tue, Jun 23, 2015 at 4:06 PM, ARIN <info at arin.net> wrote:

> Draft Policy ARIN-2015-5
> Out of region use
>
> On 18 June 2015 the ARIN Advisory Council (AC) accepted "ARIN-prop-219 Out
> of region use" as a Draft Policy.
>
> Draft Policy ARIN-2015-5 is below and can be found at:
> https://www.arin.net/policy/proposals/2015_5.html
>
> You are encouraged to discuss the merits and your concerns of Draft
> Policy 2015-5 on the Public Policy Mailing List.
>
> The AC will evaluate the discussion in order to assess the conformance
> of this draft policy with ARIN's Principles of Internet Number Resource
> Policy as stated in the PDP. Specifically, these principles are:
>
>   * Enabling Fair and Impartial Number Resource Administration
>   * Technically Sound
>   * Supported by the Community
>
> The ARIN Policy Development Process (PDP) can be found at:
> https://www.arin.net/policy/pdp.html
>
> Draft Policies and Proposals under discussion can be found at:
> https://www.arin.net/policy/proposals/index.html
>
> Regards,
>
> Communications and Member Services
> American Registry for Internet Numbers (ARIN)
>
>
> ## * ##
>
>
> Draft Policy ARIN-2015-5
> Out of region use
>
> Date: 23 June 2015
>
> Problem statement:
>
> Current policy neither clearly forbids nor clearly permits out or region
> use of ARIN registered resources. This has created confusion and
> controversy within the ARIN community for some time. Earlier work on this
> issue has explored several options to restrict or otherwise limit out of
> region use. None of these options have gained consensus within the
> community. The next logical option is a proposal that clearly permits out
> of region use while addressing the key concerns expressed about unlimited
> openness to out of region use and enables ARIN staff to implement the
> policy efficiently.
>
> Policy statement:
>
> Create new Section X:
> ARIN registered resources may be used outside the ARIN service region. Out
> of region use of IPv4, IPv6, or ASNs are valid justification for additional
> number resources if the applicant is currently using at least the
> equivalent of a /22 of IPv4, /44 of IPv6, or 1 ASN within the ARIN service
> region, respectively. In addition, the applicant must have a real and
> substantial connection with the ARIN region, which the applicant shall be
> responsible for proving.
>
> A real and substantial connection shall be defined as carrying on business
> in the ARIN region in a meaningful manner, whether for or not for profit.
> The determination as to whether an entity is carrying on business in the
> ARIN region in a meaningful manner shall be made by ARIN. Simply being
> incorporated in the ARIN region shall not be sufficient, on its own, to
> prove that an entity is carrying on business in the ARIN region in a
> meaningful manner. Methods that entities may consider using, including
> cumulatively, to prove that they are carrying on business in the ARIN
> region in a meaningful manner include:
> •       Demonstrating a physical presence in the ARIN region through a
> bricks and mortar location that is actually used for the purposes of
> conducting business in the ARIN region in a meaningful manner. That is to
> say, the location is not merely a registered office that serves no other
> business purpose.
> •       Demonstrating that the entity has staff in the ARIN region. The
> greater the number of staff, the stronger this connecting factor is.
> •       Demonstrating that the entity holds assets in the ARIN region. The
> greater the asset value, the stronger this connecting factor is.
> •       Demonstrating that the entity provides services to or solicits
> sales from residents of the ARIN region.
> •       Demonstrating that the entity holds annual meetings in the ARIN
> region.
> •       Demonstrating that the entity raises investment capital from
> investors in the ARIN region.
> •       Demonstrating that the entity has a registered office in the ARIN
> region, although this factor on its own shall not be sufficient.
> •       Any other method that the entity considers appropriate.
>
> The services and facilities used to justify the need for ARIN resources
> that will be used out of region cannot also be used to justify resource
> requests from another RIR. When a request for resources from ARIN is
> justified by need located within another RIR's service region, the officer
> of the applicant must attest that the same services and facilities have not
> been used as the basis for a resource request in the other region(s). ARIN
> reserves the right to request a listing of all the applicant's number
> holdings in the region(s) of proposed use, but this should happen only when
> there are significant reasons to suspect duplicate requests.
>
> Comments:
>
> a)      Timetable for implementation: Various iterations of this policy
> have been presented and debated by ARIN for well over a year now. Given the
> amount of time that has already been spent on developing a policy, ideally,
> this policy would be implemented as soon as possible.
>
> b)      Explanation of draft policy: The draft policy addresses both the
> problem statement as well as the concerns raised at ARIN 35 by participants
> as well as ARIN counsel.
>
> Firstly, the draft policy addresses the concerns of ARIN counsel as well
> as some of the participants at ARIN 35 by ensuring that anyone requesting
> numbered resources from ARIN has a real and substantial connection with the
> ARIN region. This should go a long way to addressing concerns about fraud,
> legal liability, and interference with the jurisdiction of other RIRs.
>
> In addition, by placing the burden of proof for demonstrating a real and
> substantial connection with the ARIN region on the applicant, the amount of
> work required of ARIN staff to apply the policy will be reduced.
>
> The factors noted above are suggestions that an entity may use to
> demonstrate to ARIN that it is carrying on business in the ARIN region in a
> meaningful manner. These factors are all indicative, some more than others,
> that an entity has a real and substantial connection to the ARIN region
> through the carrying on of business in the ARIN region in a meaningful
> manner. Not all of the factors will apply in a given case and proving a
> single factor may not be enough to satisfy ARIN that an entity is carrying
> on business in the region in a meaningful manner. The list of factors is
> meant to be quite broad, including an open-ended factor, in order to
> capture the diversity of businesses that operate in the ARIN region and
> that may justifiably require numbered resources from ARIN. This approach is
> very similar to the practical method that courts typically apply to assess
> whether parties have a sufficient connection to a jurisdiction so as to
> require them to submit themselves to the courts of that jurisdiction.
>
> This draft policy is a substantial improvement over the previous version
> of ARIN-2014-1 in terms of reducing the overall risk to the community by
> requiring a real and substantial connection between an entity requesting
> resources and the ARIN region.
>
>
>
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-- 
_______________________________________________________
Jason Schiller|NetOps|jschiller at google.com|571-266-0006
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