Re: [antitrust-policy] Update on legal advice re: antitrust

"Joel M. Halpern" <jmh@joelhalpern.com> Wed, 16 February 2022 20:52 UTC

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Date: Wed, 16 Feb 2022 15:51:47 -0500
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From: "Joel M. Halpern" <jmh@joelhalpern.com>
To: Russ Housley <housley@vigilsec.com>, Jay Daley <exec-director@ietf.org>
Cc: antitrust-policy@ietf.org
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Archived-At: <https://mailarchive.ietf.org/arch/msg/antitrust-policy/_O24q_YsXGvW8umyWzbCLyrJuZA>
Subject: Re: [antitrust-policy] Update on legal advice re: antitrust
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That should have started "without regard to the "educational"..."
Sorry,
Joel

On 2/16/2022 3:49 PM, Joel M. Halpern wrote:
> With regard to the quesiton of "educational material", I think it is 
> very important that the note well call attention to the issue of 
> antitrust.  I like the way we proposed in the last draft.  I think I can 
> live with what Jay is proposing to do instead.  (And having lawyers 
> argue with each other about it seems a bad idea.)
> 
> Doing nothing seems a bad idea to me.
> 
> Yours,
> Joel
> 
> On 2/16/2022 3:39 PM, Russ Housley wrote:
>>
>>
>>>> On 17/02/2022, at 6:54 AM, Russ Housley <housley@vigilsec.com> wrote:
>>>>
>>>> Jay:
>>>>
>>>> This advice contradicts the results of the anti-trust BoF that was 
>>>> held many years ago.  The minutes are here:
>>>>
>>>>    https://www.ietf.org/proceedings/83/minutes/minutes-83-antitrust.txt
>>>>
>>>> The IETF lawyer at the time strongly encouraged a written policy, 
>>>> but the community conclusion was that educational material was 
>>>> sufficient, but that BCPs were not needed.
>>>>
>>>> I do not think a change to this conclusion should be made without 
>>>> another BoF on the topic.
>>>
>>> To be clear, this advice is not recommending a BCP. It is 
>>> recommending a document that explains how are existing processes and 
>>> procedures are strong mitigation against antitrust risks, which is 
>>> then included in the Note Well to ensure that this subject is 
>>> highlighted.  That sounds entirely informational to me.
>>
>> I understand the suggestion.  Please review the recording if you want 
>> to get to all of the details.  In my opinion, NOTE WELL should not 
>> include educational material.
>>
>> Russ
>>
>>
>>>>
>>>>
>>>>> On Feb 15, 2022, at 9:06 PM, Jay Daley <exec-director@ietf.org> wrote:
>>>>>
>>>>> Hi All
>>>>>
>>>>> As per the call from the gendispatch chairs [1] I’m moving the 
>>>>> substantive discussion on antitrust to this list and in particular 
>>>>> I’m picking up on the issue of legal advice.  The reason I’m 
>>>>> sending this and not our lead lawyer Brad Biddle is because he’s on 
>>>>> a long planned sabbatical.
>>>>>
>>>>> Brad had previously sent a lengthy message to gendispatch outlining 
>>>>> his opinion [2], which is that our current processes and 
>>>>> procedures, as set out in the LLC Statement on Competition Law 
>>>>> Issues [3], are strong mitigation against antitrust risks though we 
>>>>> could strengthen those further.  From Brad’s email:
>>>>>
>>>>>    "I recommend that that we develop an explicit statement that 
>>>>> addresses antitrust compliance, and that we reference that 
>>>>> statement in the Note Well text that is routinely shown to 
>>>>> participants.  The substance of our explicit statement can be 
>>>>> straightforward, essentially just highlighting how our existing 
>>>>> processes and procedures are designed to mitigate antitrust risks 
>>>>> and setting our expectation that all participants will abide by 
>>>>> applicable antitrust laws"
>>>>>
>>>>> Following that we received private feedback from other lawyers 
>>>>> that, from the perspective of antitrust litigators, our current 
>>>>> processes and procedures would not provide strong mitigation of 
>>>>> antitrust risk and that could only be achieved with a detailed 
>>>>> compliance policy.  As Brad is not a litigator, he and I agreed 
>>>>> that we would get advice from specialist antitrust litigators, 
>>>>> which we have now done and what follows is a summary of their advice:
>>>>>
>>>>> 1.  We started with their assessment of the current position as set 
>>>>> out in the LLC Statement on Competition Law Issues [3].  The advice 
>>>>> was that this position is very strong for exactly the reasons set 
>>>>> out in the LLC Statement, that our structure and processes, as set 
>>>>> out in the third paragraph, manage the antitrust risk well.
>>>>>
>>>>> 2.  It was their view that a compliance policy would make no 
>>>>> difference in a civil case, which is by far the most likely 
>>>>> litigation risk.  In a criminal case, which they assessed as very 
>>>>> low risk for us, it would be a nice to have but unlikely to make 
>>>>> much of a difference. They noted that the set of structure and 
>>>>> processes pointed to in the LLC Statement are pretty much an 
>>>>> antitrust policy in themselves.
>>>>>
>>>>> As you can see, this advice is clear and aligns closely with Brad’s 
>>>>> opinion.  In particular that the substantive text of any antitrust 
>>>>> policy would be setting out how our processes and procedures 
>>>>> mitigate antitrust risk as per the LLC Statement.
>>>>>
>>>>> We further asked about two specific risks that had been raised in 
>>>>> private feedback:
>>>>>
>>>>> 3.  On the specific issue of abuse of a dominant position they 
>>>>> advised that there is a very low risk that we would be liable for 
>>>>> people abusing our systems, structures and processes for this, in 
>>>>> the same way that a hotel is not liable if people use one of its 
>>>>> meeting rooms to plan a crime.  They advised that nothing needs to 
>>>>> be done to address this risk.
>>>>>
>>>>> 4.  On the specific issue of WG chairs abusing their positions they 
>>>>> advised that the current process, particularly the strong appeals 
>>>>> process, was sufficient to mitigate the risk.  When asked if the 
>>>>> dearth of upheld appeals called that appeals process into question, 
>>>>> they advised that it did the opposite as it demonstrated the 
>>>>> robustness of our processes before the appeals stage.  They 
>>>>> suggested that we could consider specific training for WG chairs 
>>>>> and could consider asking WG chairs to sign some form of 
>>>>> declaration if we wanted to mitigate further.
>>>>>
>>>>> (The last point of asking WG chairs to sign something is a big 
>>>>> change in the way the IETF works and not something we need to 
>>>>> explore further.)
>>>>>
>>>>> Based on this advice, my plan is to work with my co-authors (which 
>>>>> may require waiting for Brad to return in two months time) on a 
>>>>> version of the draft that more closely fits with the clear advice 
>>>>> above.
>>>>>
>>>>> Please let me know if you have any questions.
>>>>>
>>>>> Jay
>>>>>
>>>>>
>>>>> [1]  
>>>>> https://mailarchive.ietf.org/arch/msg/gendispatch/x49eleWF0ehs9_virkxJRf3t3Bw/ 
>>>>>
>>>>> [2]  
>>>>> https://mailarchive.ietf.org/arch/msg/gendispatch/tQxkkDKiiswLUlG7kzqIgzmMmrQ/ 
>>>>>
>>>>> [3]  
>>>>> https://www.ietf.org/blog/ietf-llc-statement-competition-law-issues/
>>>>>
>>>>>
>>>>> -- 
>>>>> Jay Daley
>>>>> IETF Executive Director
>>>>> exec-director@ietf.org
>>>>
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