[AFRINIC-rpd] New Policy Proposal: Inter RIR IPv4 Address Transfers (AFPUB-2013-V4-001-DRAFT-01)

[Owen DeLong]

Sent from my iPad

On Jan 16, 2013, at 1:40 PM, "Andrew Alston" <alston.networks at gmail.com> wrote:

> Hi Owen,
> 
>> I don't think that is quite accurate. As I understand it, there's no real legal control of use of space by the RIRs. The RIRs only guarantee that they won't register the same resources to more than one party at the same time.
>> RIRs don't run routers and don't have legal authority to control people that run routers. If a company or group of companies want to establish their own independent internet, they are free to have their own registry (or no 
>> registry at all) and reuse all the same numbers with no legal consequences.
> 
> Just had to respond to what is found above, because it's potentially an *extremely* slippery slope we go down if we accept that.  Let me explore a hypothetical, and again, I am not a lawyer, but this is interesting...
> 
> As you rightfully pointed out earlier when we were discussing the legalities around legacy space and existent cases, if you look at the case of Kremen v. Cohen, the court used an interesting justification in the appeals process when they upheld certain things.  One of those things was the was how the court made a judgment on property rights (and if we accept that ANY body on the internet, be they an RIR, IANA or anyone has legal right to control  or assign IP space, we may extrapolate that it is property, in the same way domain names were found to be property by the courts).

I think claiming ownership of an integer is a much more bizarre concept than claiming ownership of a name. Even ownership of names is controlled in large part by context. For example, nobody but me can claim to own DeLong.COM as an internet domain, but nothing about my ownership of that or my possession of DeLong as a last name prevents anyone else from using DeLong in a variety of other contexts such as DeLong mailing service (a company founded by my grandfather), DeLong sportswear (absolutely no relationship), and a few other companies that were dumb enough to think that threatening to take my domain through UDRP was a smart way to get me to sell it to them cheap.

>  The courts in the US stated they used a three part test to determine property.  The test used was first defined it would seem in another 1992 case.  The criteria though are as follows:
> 
> " First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control;[12] and third, the putative owner must have established a legitimate claim to exclusivity."
> 

Right... IP addresses, as I described above fail tests 2 and 3.

> In my hypothetical layman brain, I would say that if we argue that RIR's, IANA and others are incapable of control or exclusive possession of address space, the space itself ceases to meet the criteria established above... at that point... well, we're in a complete free for all with zero legal recourse on anything...  Let's be a little careful in our arguments :)

Yes and no. The RIRs have zero recourse on how people use integers. I can perform as much arithmetic as I want, use addresses in the internet however people that run routers are willing to let me, etc.

There is a great deal of the internet that is held together by nothing more than good will and the fear of mutually assured destruction.

Think of it this way. Let's say that $RIR issues 192.0.2.0/24 to you.

Let's also say that I already have a contract with $ISP{1,2,3,4, and 5} that has them routing 192.0.2.0/24 for me and advertising it to their peers, customers, and transit providers.

You have no legal recourse against my contract with those ISPs and no right whatsoever to tell them that they cannot perform their duties under that contract. What you are likely able to achieve, however, is their voluntary compliance and you are even more likely to gain the voluntary compliance from their peers and upstream providers in not routing my advertisement of 192.0.2.0/24 in favor of yours.

The point is that this is all based on the voluntary compliance of cooperating entities.

There's no legal right to peering. Without peering, the internet wouldn't be an internet.

This is one of the reasons that the current structure of the internet scares the hell out of the likes of the iTU and why they want to bring greater legal formality to it. However, IMHO, doing so would not improve the situation, it would merely make the internet less accessible and more expensive.

> 
> Like I say, just an interesting one, would be very curious to hear a lawyers take on this.
> 

Well, remember, a lawyer looks at everything like a matter for the courts to decide. It is an inherently hierarchical view of the world with the government(s) as sovereign. The internet is, in its current form, as anarchical as possible in that its institutions are entirely controlled from the bottom up while the chain of distribution of resources is top down. This balance of power prevents any level the process from capturing excessive control of any part of the process and has worked very well for many years.

However, it's a completely foreign impossible concept to the vast majority of government and legal-oriented types.

Owen