Re: [antitrust-policy] feedback on draft 06

[Kristin Berdan <[e-mail]>]

Thanks for the responses, Jay and Joel. Apologies for not understanding the
motivation for this document -- I did the best I could to glean it from the
mailing list archives. It would be very helpful for me and probably other
readers to know then, what is the motivation for and goal of this document?

On Fri, Aug 4, 2023 at 3:35 AM Jay Daley <[e-mail]> wrote:

> Hi Kristin
>
> Thanks for the feedback and welcome to the IETF.  To add to what Joel has
> said, I have some further comments below, which are all subject to
> discussion with my fellow authors and possible commentary from other
> participants:
>
> > On 3 Aug 2023, at 23:05, Kristin Berdan <kberdan=
> [e-mail]> wrote:
> >
> > Hello all,
> > I'm new to the IETF so please excuse any errors or ignorance. I've
> reviewed the mailing list discussion on the antitrust guidelines and I'd
> like to offer this feedback on the current draft (06):
> > Section 1: As I understand it, the consensus of a 2012 antitrust policy
> BOF, later bolstered by legal advice, was that educational materials
> regarding competition law should be made available to the IETF community.
> And this document is intended to serve as that educational material. If
> this is all correct, then it would be useful to mention this context in the
> Introduction. It could be as simple as, "The consensus of a 2012 antitrust
> policy BOF, later bolstered by legal advice, was that educational materials
> regarding competition law should be made available to the IETF community.
> These guidelines are intended to be responsive to that consensus."
> Otherwise, these guidelines seem unmoored to any historical context.
> Related to this, see my suggested edit to Section 8.
>
> The origins of this i-D are not that BoF, though this I-D has to conform
> to the outcome of that BoF.  Even if it were, then RFCs of this nature
> would not normally document their provenance - that’s better left to
> Datatracker given the many possible routes and many possible twists and
> turns a document can take.
>
> > Section 2.3, second bullet: To correct awkward phrasing, I suggest
> re-arranging slightly: "Additionally, to avoid reputational harm to the
> IETF, the IETF cannot be a forum where participants engage in problematic
> antitrust behavior, even if direct liability for that behavior falls on
> those participants and not the IETF."
>
> That does seem clearer.
>
> > Section 3: The first sentence seems somewhat tautological --
> effectively, it's just saying "IETF designs its policies and procedures to
> mitigate antitrust risk, so following those policies and procedures
> mitigates antitrust risk." How about stating something like the following,
> adapted from the IETF Administration LLC Statement on Competition Law
> Issues: "IETF processes and procedures, with their focus on free and open
> participation and transparent conduct of IETF activities, are particularly
> well-suited to mitigate competition law risks. In particular, participants
> are required to comply with the following policies:"
>
> That also seems clearer.
>
> > Section 4.1: The list of "topics to avoid" makes me uneasy simply
> because context is everything when it comes to analyzing antitrust risk,
> and there is nothing inherently problematic (never mind illegal) about
> discussing those topics outside of the collaborative IETF process. In
> particular, the IETF would probably not want to be seen as a forum where
> discussion of employee compensation or workplace conditions was discouraged
> (this is an area that has seen a lot of attention recently in the U.S. tech
> industry). I wonder if there is some way we could emphasize a bit more the
> importance of that context, and the responsibility of participants to use
> their best judgement in navigating that context. Perhaps something along
> these lines? "While not all discussions of these topics would necessarily
> be antitrust violations, and recognizing that analysis of antitrust
> considerations will be different for differently-positioned participants,
> prudence suggests that participants use judgement and discretion if they
> discuss these topics, and participants may find that avoiding these
> specific topics in the context of the collaborative IETF process best
> mitigates antitrust risks for themselves and for the IETF."
>
> It took me a while to pin down the exact text you are proposing is
> changed, which I believe is the insertion below:
>
> "prudence suggests that … participants use judgement and discretion if
> they discuss these topics, and participants may find that … avoiding these
> specific topics"
>
> To me that seems sensible but there may be problems with that I haven’t
> considered.
>
> > Section 4.2: The use of the phrase "informal advice" is problematic
> here, at least when it comes to counsel. Suggested edit: "IETF participants
> who would like more information on these issues have a number of options
> open to them, including speaking to relevant Area Directors or raising the
> matter with the community on a mailing list. If a participant desires legal
> advice on this topic, the proper path is to consult their own legal
> counsel."
>
> That one I will leave to all of the lawyers to comment on.
>
> > Section 4.4: I'm not sure what the convention is, but either here or in
> the references section I'd suggest including a link to the whistleblower
> process referred to in this section (which I assume is this one).
>
> The link is intentionally omitted because the link is tied to the exact
> process the LLC uses, which is inherently ephemeral as is even the web page
> that describes it, and as RFPs are meant to be immutable then that pretty
> much guarantees an incorrect RFC in a couple of years.  It’s easy enough
> for someone to do a search to find the whistleblowing process so that
> absence of a link is only a minor barrier and one that we could reasonable
> expect someone to overcome if they need to do something as important as
> whistleblow.
>
> > Section 8: I'd suggest adding to the list of informative references the
> IETF Administration LLC Statement on Competition Law Issues since (as I
> understand it) that was the motivation for the preparation of this document.
>
> Yes that could be useful.
>
> thanks again
> Jay
>
> > Kristin
> > _______________________________________________
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>
> --
> Jay Daley
> IETF Executive Director
> [e-mail]
>
>