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

[Russ Housley <[e-mail]>]

>> On 17/02/2022, at 6:54 AM, Russ Housley <[e-mail]> 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 <[e-mail]> 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
>>> [e-mail]
>> 
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