Re: [Gendispatch] I-D Action: draft-halpern-gendispatch-antitrust-01.txt

[Brad Biddle <[e-mail]>]

All -- for those who don't know me: I serve as legal counsel to the 
IETF. In the Gendispatch meeting held in connection with IETF 112 I was 
asked to provide my perspective on the need for the antitrust-related 
I-D that is currently under discussion. This message summarizes my 
thoughts.

Risks related to antitrust law (or "competition" law, as it is known in 
many countries) inexorably arise in a standards development context. As 
a general rule, standards development requires cooperation between 
competitors. Antitrust law, which is designed to ensure robust 
marketplace competition, embodies a deep suspicion of competitor 
collaboration. While antitrust regulators understand the value of 
standards, they are wary of circumstances where the pro-competitive 
benefits of standardization could be outweighed by anti-competitive 
collusion or other behavior that harms market competition. 
Standardization forums are often the subject of investigation by 
antitrust regulators and the focus of antitrust-related disputes between 
private litigants.

Standards development organizations (SDOs) manage these well-known risks 
in different ways. Many SDOs have explicit antitrust policies (although, 
interestingly, the content of these policies can differ considerably 
among SDOs). Many routinely remind their participants of the importance 
of antitrust compliance, for example by showing a reminder slide at the 
beginning of meetings. While these steps alone are neither necessary nor 
sufficient to achieve actual substantive compliance with applicable 
antitrust law, they are established best practices and are likely to be 
expected by antitrust regulators or others assessing the antitrust 
compliance practices of an SDO.

The IETF currently has a robust approach to managing antitrust 
compliance. As discussed in an IETF LLC statement [1], the 
organizational structure and the processes and procedures of the IETF 
are particularly well-suited to mitigating antitrust risks. Further, we 
have a sophisticated body of participants who understand these risks and 
who readily raise concerns. IETF leadership monitors antitrust 
developments and has a well-established culture of compliance. Our 
current antitrust compliance strategy is solid.

A critical part of what the US Department of Justice (a key antitrust 
enforcer) calls an antitrust compliance "program" is continuous 
monitoring and improving of our compliance strategy, however. Our 
current approach has the disadvantage of not mapping directly to the 
established best practices of having (1) an explicit statement about our 
antitrust compliance expectations, and (2) routine reminders for 
participants about the importance of antitrust compliance. I believe 
that it would serve us well to incorporate these practices into our 
compliance program, both because doing so would both in fact strengthen 
our antitrust compliance efforts and because the absence of these 
elements has caused misperceptions about IETF's commitment to antitrust 
compliance. Specifically, 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. We will 
circulate an updated I-D that embodies this simple model shortly.

I understand that some in the IETF community would like practical, 
detailed guidance about how to comply with applicable antitrust law in 
particular circumstances. My suggestion is that we discuss this need 
separately and address it in educational materials that would exist 
separately from the antitrust-focused I-D.

Please let me know if any additional clarification would be helpful.

-Brad


[1] https://www.ietf.org/blog/ietf-llc-statement-competition-law-issues/


Brad Biddle | [e-mail] | +1.503.502.1259 (mobile) | 
http://biddle.law

On 3 Nov 2021, at 8:37, Joel M. Halpern wrote:

> This is a significant revision of the draft on IETF antitrust 
> guidelines.  We tried to address what we heard in the previous 
> feedback, and tightened the language related to legal issues.
>
> Chairs, if it is possible I would like to present this for dispatching 
> at the upcoming session.
>
> Thank you,
> Joel
>
>
> -------- Forwarded Message --------
> Subject: I-D Action: draft-halpern-gendispatch-antitrust-01.txt
> Date: Wed, 03 Nov 2021 08:15:16 -0700
> From: [e-mail]
> Reply-To: [e-mail]
> To: [e-mail]
>
>
> A New Internet-Draft is available from the on-line Internet-Drafts 
> directories.
>
>
>         Title           : Antitrust Guidelines for IETF Particiants
>         Authors         : Joel M. Halpern
>                           Brad Biddle
>                           Jay Daley
> 	Filename        : draft-halpern-gendispatch-antitrust-01.txt
> 	Pages           : 8
> 	Date            : 2021-11-03
>
> Abstract:
>    This document provides guidance for IETF participants on compliance
>    with antitrust laws and how to reduce antitrust risks in connection
>    with IETF activities.
>
>
> The IETF datatracker status page for this draft is:
> https://datatracker.ietf.org/doc/draft-halpern-gendispatch-antitrust/
>
> There is also an HTML version available at:
> https://www.ietf.org/archive/id/draft-halpern-gendispatch-antitrust-01.html
>
> A diff from the previous version is available at:
> https://www.ietf.org/rfcdiff?url2=draft-halpern-gendispatch-antitrust-01
>
>
> Internet-Drafts are also available by anonymous FTP at:
> ftp://ftp.ietf.org/internet-drafts/
>
>
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