[arin-ppml] ARIN-2019-7: Elimination of the Waiting List (was:Re: Looking for final show of support on revised Advisory Council Recommendation Regarding NRPM 4.1.8. Unmet Requests

[John Curran]

On 16 Jun 2019, at 3:59 PM, Mueller, Milton L <milton at gatech.edu<mailto:milton at gatech.edu>> wrote:
...
Actually, it doesn't. It raises a highly speculative possibility that in some future world, someone in a revocation case MIGHT argue that ARIN has a financial incentive to recover the resources, and that that argument MIGHT affect the outcome, and that it might affect it in a way that is bad. The legal assessment provides no reason to conclude that this speculative possibility outweighs the clear benefits of efficient disposition of the resources. The legal assessment does not explain why the financial incentive behind nonpayment of fees is different from the financial incentive of auction proceeds. The assessment doesn’t entertain the possibility that a financial incentive to ensure compliance might be a good thing.

Milton -

Consider that revocation in a matter of fraud & revocation, such as was recently performed and documented here - <https://teamarin.net/2019/05/13/taking-a-hard-line-on-fraud/>

In such a situation, our revocation is compliant with terms of service in the registration services agreement, with a successful result facilitating recovery of resources fraudulently obtained and their reissurance to the community.  Both ARIN and its community benefit from appropriate administration of number resources in region, but there is no significant financial benefit to ARIN.  If instead ARIN were revoking the resources with the intent of monetizing them (approximate $10M USD value) with ARIN being the recipient of financial proceeds, it would be trivial to argue that ARIN’s pursuit of the matter was being motivated out of more than just proper administration of number resources in the region, but rather was the result of being a party with a strong financial interest in the outcome.

I am not a lawyer, but can say from firsthand experience that ARIN’s present stance as administrator and steward of the registry makes dealing with many disputes rather straightforward, and if we were a party of significant financial interest in the outcomes, then there are various legal options for enforcement that would become quite challenging or altogether unavaialble, and thus require us to go further down the litigation/arbitration to obtain the appropriate outcomes for the community.  This is not a “highly speculative” outcome of monetization, but rather inevitable outcome as judges reasonable view claims/motions by parties with strong financial motivation as requiring a greater degree of exploration of facts, and such exploration requires moving past “pretrial” and into the fact-finding and arguing phase of a case.  With enough effort, we’re likely to achieve the same outcome in the end, but it is readily apparent to be that becoming a party with a strong financial incentive in this manner will raise the cost and uncertainty of our legal proceedings.

If ARIN’s policies directed that we would monetize the recovered resources (even if then using the proceeds for the benefit of the community), I am confident that we would be still be in litigation over the particular fraud referenced above.
Such a consequence shouldn’t prevent the community from considering any policy it desires, but rather serves to inform that a policy options that makes ARIN a highly-interested partly financially will inevitably add some costs and uncertainty to our legal proceedings regarding revocation/reclamation.

Thanks,
/John

John Curran
President and CEO
American Registry for Internet Numbers

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