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
References: <44BE072B-4492-4ACC-99B8-66D64FC8EA0F@vigilsec.com> <52C246C8-9A35-48EA-B2A8-4602210EA59B@ietf.org> <4F077F5D-8403-42C0-9ECB-DC027D171B50@vigilsec.com> <cd944d03-ce0e-64d9-e002-374ec70a626f@joelhalpern.com>
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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 >>>> >>>> _______________________________________________ >>>> antitrust-policy mailing list >>>> antitrust-policy@ietf.org >>>> https://www.ietf.org/mailman/listinfo/antitrust-policy >>> >>> _______________________________________________ >>> antitrust-policy mailing list >>> antitrust-policy@ietf.org >>> https://www.ietf.org/mailman/listinfo/antitrust-policy >> >> _______________________________________________ >> antitrust-policy mailing list >> antitrust-policy@ietf.org >> https://www.ietf.org/mailman/listinfo/antitrust-policy > > _______________________________________________ > antitrust-policy mailing list > antitrust-policy@ietf.org > https://www.ietf.org/mailman/listinfo/antitrust-policy
- [antitrust-policy] Update on legal advice re: ant… Jay Daley
- Re: [antitrust-policy] Update on legal advice re:… Russ Housley
- Re: [antitrust-policy] Update on legal advice re:… Jay Daley
- Re: [antitrust-policy] Update on legal advice re:… Jay Daley
- Re: [antitrust-policy] Update on legal advice re:… Russ Housley
- Re: [antitrust-policy] Update on legal advice re:… Joel M. Halpern
- Re: [antitrust-policy] Update on legal advice re:… Joel M. Halpern
- Re: [antitrust-policy] Update on legal advice re:… Jorge Contreras
- Re: [antitrust-policy] Update on legal advice re:… Rigo Wenning