Re: [antitrust-policy] feedback on draft 06

[Joel Halpern <[e-mail]>]

My mail reader mangled your email fairly badly.  I am not sure why.  (It 
appears readably in the archive.)

Please do not attribute or assume motivation as to why we decided to 
write and try to advance this document.  It doesn't matter, and at least 
for myself your assumptions are misleading.

I and my co-authors will look at your other suggestions.

Yours,

Joel

On 8/3/2023 6:05 PM, Kristin Berdan 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.
> 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."
> 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:"
> 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."
> 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."
> 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 
> <https://www.ietf.org/about/administration/policies-procedures/whistleblower/>).
> Section 8: I'd suggest adding to the list of informative references 
> the IETF Administration LLC Statement on Competition Law Issues 
> <https://www.ietf.org/blog/ietf-llc-statement-competition-law-issues/> 
> since (as I understand it) that was the motivation for the preparation 
> of this document.
> Kristin
>
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