[TLS] Re: draft-connolly-tls-mlkem-key-agreement

[Joseph Salowey <[e-mail]>]

Hi Dan,

You continue to violate list policy with unprofessional commentary on other
participants' motivations and repeatedly raising points that are out of
scope.  Please stop this behavior.  This is the last warning before we will
take action and temporarily ban you from the list; see BCP 94 [0].

[0] https://datatracker.ietf.org/doc/html/rfc3934

Joe and Sean


On Fri, Dec 13, 2024 at 6:17 PM D. J. Bernstein <[e-mail]> wrote:

> Adding [e-mail]; but I'm replying to a [e-mail]
> message, and the antitrust issues here are clearly relevant to an
> ongoing TLS discussion, so I'm also keeping [e-mail].
>
> Rob Sayre writes:
> > I think you can find Brad Biddle saying "the process is fine" about all
> of
> > these legal issues on YouTube. But, he did have to take the time to
> address
> > the point, so I can see why it might come up again.
>
> He claimed in 2021 that "Our current antitrust compliance strategy is
> solid", but IETF LLC admitted in
>
>
> https://mailarchive.ietf.org/arch/msg/antitrust-policy/f1iHM9p8N-U8p_pXen2ruDqjPPQ/
>
> that other lawyers say he's simply wrong: "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".
>
> Notice the word "not". Or simply check the actual antitrust rules for
> standardization organizations in, e.g.,
>
>
> https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52011XC0114(04)
>     https://obamawhitehouse.archives.gov/omb/circulars_a119
>
> (where https://uscode.house.gov/statutes/pl/108/237.pdf gives power to
> OMB A-119 under antitrust law) and see for yourself the rules that IETF
> _clearly_ flunks, such as "each objector is advised of the disposition
> of his or her objection(s) and the reasons why" and "the organisations
> would also need to have objective and non-discriminatory procedures for
> allocating voting rights as well as, if relevant, objective criteria for
> selecting the technology to be included in the standard".
>
> Why, then, do we have IETF LLC sounding convinced that everything is
> fine? This is partially explained in the first link above: in short, the
> corporation found yet another lawyer to review
>
>     https://www.ietf.org/blog/ietf-llc-statement-competition-law-issues/
>
> and to say that it sounded fine.
>
> Given the documented disagreement between lawyers on this topic, you'd
> think that the corporation (1) would refrain from portraying its
> position as something non-controversial and (2) would try hard to
> understand _why_ the lawyers are coming to different conclusions.
>
> Did the review consider the specific rules for standards-development
> organizations? Did it consider US law _and_ EU law? One can't tell from
> the information provided. But what one can see is that the last link
> above makes various claims that will be debunked in court. For example:
>
>     * "Participants engage in their individual capacity, not as company
>       representatives." (Counterexample: See the Cisco incident in this
>       TLS discussion, condoned by IETF LLC and by the WG chairs.)
>
>     * "IETF procedural rules, which include robust appeal options, are
>       well-documented in public materials, and rigorously followed."
>       (Counterexample: This Kyber/ML-KEM spec simply ignores BCP 79.)
>
>     * "IETF activities are conducted with extreme transparency, in
>       public forums." (Many IETF activities are public, but the
>       back-room deals aren't. The reason such deals can influence IETF
>       decisions is that IETF doesn't follow objective procedures.)
>
>     * "Decision-making requires achieving broad consensus via these
>       public processes." (No, not with the OMB A-119 definition of
>       consensus.)
>
>     * "IETF participants use their best engineering judgment to find the
>       best solution for the whole Internet, not just the best solution
>       for any particular network, technology, vendor, or user." (In this
>       TLS discussion we've seen ~"do it because NSA wants it", ~"do it
>       because I want it", and non-response to engineering objections.)
>
> In other words, the lawyer who thought things were fine was reviewing a
> fictional version of IETF. A lawyer starting from the facts of how IETF
> actually operates would naturally end up with a different conclusion.
>
> ---D. J. Bernstein
>
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