Subject: I-D.farrresnickel-harassment - timebomb

From: Michael StJohns <[email-masked]>
Date: Thu, 19 Mar 2015 15:54:21 -0400

Version -06 of draft-farresnickel-harassment has this small phrase that was added in this version:

>   Any definition of harassment prohibited by an applicable law can be
>   subject to this set of procedures.

I find "prohibited by an applicable law" to be somewhat problematic and overreaching.

This should be removed.  If something is a violation of applicable law, then the folks responsible for that law should deal with it, not us.  We should be dealing with harassment that impinges on the IETFs creation of standards and not with harassment that has little or no nexus with the IETF.  

Mike

---

From: "Dan Harkins" <[email-masked]>
Date: Thu, 19 Mar 2015 14:08:13 -0700 (PDT)

On Thu, March 19, 2015 12:54 pm, Michael StJohns wrote:
> This should be removed.  If something is a violation of applicable law,
> then the folks responsible for that law should deal with it, not us.  We
> should be dealing with harassment that impinges on the IETFs creation of
> standards and not with harassment that has little or no nexus with the
> IETF.

  +1

  If the harassment falls under the purview of some legal authorities
we should disengage and let the legal process sort itself out.

  regards,

  Dan.

---

From: Pete Resnick <[email-masked]>
Date: Thu, 19 Mar 2015 16:31:50 -0500

On 3/19/15 2:54 PM, Michael StJohns wrote:
>> Any definition of
>> harassment prohibited by an applicable law can be
>>     subject to this set of
>> procedures.

This was added at the behest of the attorneys that did the legal review.

> This should be removed.  If something is a violation of applicable 
> law, then the folks responsible for that law should deal with it, not 
> us.  We should be dealing with harassment that impinges on the IETFs 
> creation of standards and not with harassment that has little or no 
> nexus with the IETF.

You have misread the sentence (for which I don't blame you; see below). 
It is not talking about dealing with acts that are violations of local 
law. What it says is that the procedures in this document *can* be 
applied to an act that falls under the definition of harassment that 
appears in a local law. That is, if a local law says that harassment 
includes commenting on the stripe pattern of someone's shoes, a person 
*may* bring a complaint of harassment to the Ombudsteam and ask that 
these procedures be used.

I did not think that the wording was particularly clear, but it is the 
wording that the attorneys felt would be legally useful.

pr

-- 
Pete Resnick<http://www.qualcomm.com/~presnick/>
Qualcomm Technologies, Inc. - +1 (858)651-4478

---

From: "Dan Harkins" <[email-masked]>
Date: Thu, 19 Mar 2015 15:05:20 -0700 (PDT)

Hi Pete,

> these procedures be used.

  Is this bringing our standards down to the lowest common denominator
in the world? Your example is (intentionally, I presume) trivial but not
by much. Let me try a real world example:

  If I am sitting in the lobby of the IETF hotel reading Charlie Hebdo and
the cover has something someone finds offensive and that might, in fact,
be a violation of a law in their home country am I subject to becoming
a Respondent? Even if it's not a violation of the law but the person feels
like he or she has been harassed by viewing the cover of my magazine
am I subject to becoming a Respondent?

> wording that the attorneys felt would be legally useful.

  Sometimes it's OK to politely decline to take an attorney's advice.

  regards,

  Dan.

---

From: "Joel M. Halpern" <[email-masked]>
Date: Thu, 19 Mar 2015 18:15:44 -0400

I read "local law" as meaning the law where the interaction is taking 
place.  While that can get very complicated for electronic interaction, 
for the example you chose to cite it is very clear.  If Charlie Hebdo's 
cover violates local law where you are reading it, you have chosen to 
ask for more trouble than just a discussion with the IETF harrasment 
ombudsman.

Yours,
Joel

PS: While one can indeed decline the advice of attorney, one needs to be 
very sure of the reasons for the advice, and the implications of 
declining, before doing so.

---

From: Spencer Dawkins at IETF <[email-masked]>
Date: Thu, 19 Mar 2015 17:32:18 -0500

Fwiw,

> I read "local law" as meaning the law where the interaction is taking
place.

As did I.

> While that can get very complicated for electronic interaction, for the
example you chose to cite it is very clear.  If Charlie Hebdo's cover
violates local law where you are reading it, you have chosen to ask for
more trouble than just a discussion with the IETF harrasment ombudsman.

Indeed.

Spencer

> PS: While one can indeed decline the advice of attorney, one needs to be
very sure of the reasons for the advice, and the implications of declining,
before doing so.

---

From: John C Klensin <[email-masked]>
Date: Thu, 19 Mar 2015 18:48:01 -0400

--On Thursday, March 19, 2015 18:15 -0400 "Joel M. Halpern"
<[email-masked]> wrote:

>...
> PS: While one can indeed decline the advice of attorney, one
> needs to be very sure of the reasons for the advice, and the
> implications of declining, before doing so.

IANAL and have no clue about local laws in any of the places
where the IETF is scheduled to meet in the next few years, but
it is my understanding from a briefing or three that
anti-harassment and similar statutes and case law in some places
can make an organization legally complicit in the bad acts if
they have a policy or procedure and are asked to enforce local
rules and don't.  I'd be curious (but don't need to know) if
that is part of what the attorneys had in mind, but, if it was,
that problematic language may offer significant protection to
the IETF.

   john

---

From: Michael StJohns <[email-masked]>
Date: Thu, 19 Mar 2015 21:12:32 -0400

At 05:31 PM 3/19/2015, Pete Resnick wrote:
>You have misread the sentence (for which I don't blame you; see below). It is not talking about dealing with acts that are violations of local law. What it says is that the procedures in this document *can* be applied to an act that falls under the definition of harassment that appears in a local law. That is, if a local law says that harassment includes commenting on the stripe pattern of someone's shoes, a person *may* bring a complaint of harassment to the Ombudsteam and ask that these procedures be used.
>
>I did not think that the wording was particularly clear, but it is the wording that the attorneys felt would be legally useful.

No - I read the sentence in black and white.  What it says that the definition of harassment in an "applicable" law can be used as the definition of harassment for the IETF process.

An applicable law includes:  local law, law affecting the corporation (e.g. I think Delaware for the IETF or various other corporations), and other laws where legal entity claims personal jurisdiction over the participants - specifically the complainer/responder.   

E.g. consider two IETF participants who are citizens of country A. One participant lives in country A, the second is a dual national of Country A and Country B.   The laws of country A say that is harassment for any citizen to question any other citizen about their beliefs with respect to the might and grandeur of Country A.  And Country A asserts personal jurisdiction for this law on each and every citizen no matter where located.

 What exactly does these two participants arguing about Country A politics have to do with IETF standards creation?

This is not an example chosen at random - and feel free to substitute religious arguments for politics to get an equally viable situation.

My specific problem with the cited language is that it has NOTHING to do with actually getting standards created and there is no reason for the IETF to involve itself in purely legalistic issues.

Mike

>pr
>
>-- 
>Pete Resnick <http://www.qualcomm.com/~presnick/>

---

From: Michael StJohns <[email-masked]>
Date: Thu, 19 Mar 2015 21:13:55 -0400

At 06:15 PM 3/19/2015, Joel M. Halpern wrote:
>I read "local law" as meaning the law where the interaction is taking place.  While that can get very complicated for electronic interaction, for the example you chose to cite it is very clear.  If Charlie Hebdo's cover violates local law where you are reading it, you have chosen to ask for more trouble than just a discussion with the IETF harrasment ombudsman.

Except the document does not say "local law" and does not say "local law at the place where the IETF occurs during only the time the IETF is in session".

The phrase was "applicable law" and that is NOT equivalent to "local law" in any way, shape or form.

>Yours,
>Joel
>
>PS: While one can indeed decline the advice of attorney, one needs to be very sure of the reasons for the advice, and the implications of declining, before doing so.
>

---

From: Nico Williams <[email-masked]>
Date: Thu, 19 Mar 2015 21:40:44 -0500

> This was added at the behest of the attorneys that did the legal

So what?

Lawyers give advice.  Sometimes it's bad advice but it sounds good in
the bubble in which the advice-giver lives.  The fact that they are
lawyers is insufficient.  We need to evaluate whether the advice given
is any good, and I aver that we are qualified to do so to a significant
degree.

We can't have a debate with lawyers who don't participate.  A process of
consensus building with non-participants... isn't a process of consensus
building.

We can't simply accept what your lawyers say because they are lawyers
and we aren't.  We are not entirely unqualified to judge the wisdom of
their proposals.  Not only that, but we must be prepared to judge the
wisdom of their proposals even if we are not qualified.  And you and the
lawyers must be prepared to respond (or back off).  Sure, this isn't
national (or even local) politics and we don't vote here, but
nonetheless, many principles that apply to the former apply here as
well.

I object to:

a) The idea that harassment "based on" anything other than the listed
attributes is OK (it shouldn't be).

The list of attributes given is familiar in the context of
discrimination policies, but here we're dealing with harassment.  It
should not be OK to harass someone based on (or not based on anything)
attributes not listed even if it were perfectly permissible to
discriminate on the basis of such attributes.

Harassment is, to paraphrase Justice Potter Stewart, something we know
when we see it.  But if there's any risk that we might not agree, then
we really need a process that can recognize uncertainty and which is not
easy to hijack.  The process provided in this I-D does not qualify.

b) The idea that we should accept any legal jurisdiction's definition of
harassment (if it happens over mailing lists or IM, which jurisdiction(s)
shall apply?).  Certainly we shouldn't limit our definition to that of
legal jurisdictions, but we shouldn't let ourselves be made to use any
particular legal jurisdiction's definition either.

c) Any process where the Respondent isn't afforded an opportunity to
defend themselves.  For example, the I-D says that the Ombudsteam "may
contact the Respondent", and so on.  There appears to be no guarantee of
any kind to Respondents of their right to mount a defense.

Just how enlightened are we?

Here we have a process that can stain the image of participants whose
livelihoods depend on a clean image, and this process can lend false
legitimacy to claims that don't merit it.  This is not good.

One can imagine a case where a Respondent ends up going to court seeking
damages for slander and libel.  Some jurisdictions make claim to judge
such cases in spite of very tenuous relation to them.  It's one thing if
I say "Joe harassed me" and a very different thing if the IETF says "we
believe Joe harassed Nico and now Joe is forbidden from participating at
the IETF" -- the former might not yield a lawsuit, but the latter might
have very farreaching consequences whether it be defensible or not.
We'd better make sure that when we speak negatively as to entities that
might be harmed by such speech, that such speech is factually correct.

d) Promising more confidentiality protection to any Reporters or
Subjects (victims?) than we can reasonably offer.

Certainly we mustn't promise confidentiality for any material that
becomes the subject of legal proceedings: we cannot resist subpoenas.

But also, in the event of an all-consuming controversy, shining light on
proceedings may be necessary to resolving the controversy.

And anyways, any legalistic procedures without public proceedings and
evidence is hard to distinguish from a sham.

It is important that Reporters know that false reports will be
understood as such and that they are a form of harassment which is too
subject to whatever process we specify for dealing with harassment!
That necessarily limits the degree of confidentiality that can be
afforded to a Reporter in the end.

Obviously any report that can be addressed satisfactorily without
resorting to any sort of judicial-alike process or public redress can
result in complete confidentiality being afforded to all outside the
Ombudsteam (what of future Ombudsteams?).  But I think that's as much as
we can promise.

I probably object to other things as well, but I mostly have been busy
and not really studied the I-D in enough detail to formulate an
exhaustive list of objections.  Also, I've been hoping that whatever is
adopted, goes mostly unused (because we mostly don't have the sorts of
events that can be deemed harassment and which are serious enough to
require any official investigation and remediation processes, or at
least I've neither observed any nor heard of specific such events,
though I accept claims that some have occurred, but I don't think such
claims are enough to warrant the process outlined in this I-D).

Nico
--

---

From: Nico Williams <[email-masked]>
Date: Thu, 19 Mar 2015 21:45:39 -0500

On Thu, Mar 19, 2015 at 09:13:55PM -0400, Michael StJohns wrote:
> Except the document does not say "local law" and does not say "local
> law at the place where the IETF occurs during only the time the IETF
> is in session".
> 

But "applicable law", today, has to be local to some physical
jurisdiction.  We're still living in a world of politics with sharp
physical borders.  We don't have law creation and enforcement entities
divorced from physical political entities.  Therefore "applicable law"
is "local law" in some sense, at least for now.

What is not clear is which localities shall seek to apply their laws to
specific cases of harassment at the IETF, or which localities' laws a
Reporter and/or the Ombudsteam shall seek to apply to such cases even
when the localities bring no legal complaint to any forum qualified to
hear it.

Nico
--

---

From: Nico Williams <[email-masked]>
Date: Thu, 19 Mar 2015 21:53:41 -0500

> that problematic language may offer significant protection to

There must be better ways to draft text to obtain such protection.
Given that there are many localities whose laws might apply, we might
not be able to write a policy that achieves that universally.

There are also multiple people involved in harassment cases (by
definition) who may have different perspectives of the events in
question, and who retain legal rights, including the right to file legal
complaints as to libel and slander.

This means that there are multiple competing interests and the IETF
might not always be able to escape all kinds of liability.

Even if there are no better ways to write that text, the motivation and
reasoning behind it still need to be expounded.  And even then it might
not be the best idea.  We may not be lawyers, but as it is our consensus
that is sought, we should not be treated like children.

Nico
--

---

From: Nico Williams <[email-masked]>
Date: Thu, 19 Mar 2015 21:56:14 -0500

> > I read "local law" as meaning the law where the interaction is taking

But that's not necessarily what a court might believe.  The UK is famous
for its libel law's extensive reach.  An event need not have any
relation to such a court's physical jurisdiction, and yet they might
claim jurisdiction anyways.  Be careful.

> more trouble than just a discussion with the IETF harrasment ombudsman.

+1.

---

From: Pete Resnick <[email-masked]>
Date: Thu, 19 Mar 2015 22:17:37 -0500

> attributes is OK (it shouldn't be).

Good. That's why the paragraph above says that the document, "does not 
attempt to further precisely define behavior that falls under the set of 
procedures identified here, nor does it attempt to list every possible 
attribute that might be the basis for harassment". The intent was to not 
limit harassment to things listed, and this is the language that we used 
to accomplish that. The text in the last paragraph in section 2 was 
*additive*, not limiting, at least as far as we were told.

> particular legal jurisdiction's definition either.

You object to the Ombudsteam responding to a complaint of harassment 
based on a definition in a some legal jurisdiction (which is what the 
current text says), or you object to them being forced to respond in a 
particular way based on a definition in some legal jurisdiction (which 
the current text does not say and does not require)?

The other issues you bring up have been previously discussed.

pr

---

From: Brian E Carpenter <[email-masked]>
Date: Fri, 20 Mar 2015 16:29:13 +1300

Nico,

On 20/03/2015 15:53, Nico Williams wrote:
...
> There must be better ways to draft text to obtain such protection.

IANAL. As far as I know, YANAL. So I don't see how either of us
could really make that assertion. If there's a jurisdiction where
accusing somebody of not being a lawyer is considered to be harassment,
a way of keeping the matter out of the courts of that jurisdiction
is for the person who's been accused of not being a lawyer to
invoke the Ombudsteam. This works regardless of geography.

    Brian

---

From: Nico Williams <[email-masked]>
Date: Thu, 19 Mar 2015 22:38:36 -0500

> invoke the Ombudsteam. This works regardless of geography.

Elsewhere I explain that we must be able to judge the lawyers' output.
We cannot simply take it, no questions asked.

An IETF process is insufficient for keeping a harassment case out of
the courts if the IETF process itself produces a controversy such as
might cause one to file a civil lawsuit.  A process with the faults I
listed is not confidence inspiring.

---

From: "Dan Harkins" <[email-masked]>
Date: Thu, 19 Mar 2015 22:46:25 -0700 (PDT)

> ask for more trouble than just a discussion with the IETF harrasment

  Well yes, but doesn't that beg the question?

  If I have done something that asks for more trouble than a mere
talking to by the IETF harassment ombudsman then why have the
IETF harassment ombudsman get involved in the first place? If the
authorities behind "local law" are going to be handling it then let
that legal process work itself out. No need to get the IETF involved
in meting out punishment that may ultimately expose it to potential
abuses of someone's due process and 14th amendment rights.

  regards,

  Dan.

---

From: Eliot Lear <[email-masked]>
Date: Fri, 20 Mar 2015 08:05:35 +0100

Hi Nico,

> We cannot simply take it, no questions asked.

Not taking issue with other points in your list, but..

At least in my experience, the IETF leadership has had no problem not
simply taking (or even in some cases asking for) legal advice, to the 
consternation of our lawyer.

While the text in question is not great prose, if I understand the
intent correctly, it is to address this case:  if someone brings a
complaint that demonstrates a violation of law that can be applied in a
given situation, then the IETF management may need to take action in
order to protect the institution and its leadership against further
legal action, never mind what we think of as harassment.  That seems
both necessary and reasonable to me, even if the words aren't perfect.
> listed is not confidence inspiring.

I am afraid that the risk of litigation by one party or another cannot
be avoided, and so I'll fall back on a non-lawyer's view: when in doubt,
do what you think is right.  But let's try to avoid what landmines we
can see.

To be fair to the IESG, and in particular Pete and Adrian, this is a
hard subject to cover, and the structure and purpose of the IETF does
not lend itself to many existing examples.

Eliot

---

From: John C Klensin <[email-masked]>
Date: Fri, 20 Mar 2015 10:35:18 -0400

--On Thursday, March 19, 2015 21:45 -0500 Nico Williams
<[email-masked]> wrote:

> jurisdiction.  We're still living in a world of politics with
> sharp physical borders.  We don't have law creation and
> enforcement entities divorced from physical political
> entities.  Therefore "applicable law" is "local law" in some
> sense, at least for now.
>...

Nico,

While, at least up to a point, I will defend your right to go as
far down this path as you like, I think it is pointless.

As Pete has pointed out, the text doesn't prevent one from
feeling harassed by behaviors that are not enumerated, nor does
it prevent a discussion with the Ombudsteam over such behaviors,
nor does it prevent the Ombudsteam from taking whatever actions
are permitted by the rules and that they find appropriate if
they agree that what is going on is harassing.  I think that is
as it should be, if only because the alternative encourage
hair-splitting of the "I was holding my nose when I said that,
so it doesn't count" variety which actually benefits no one.

In that sense, an "applicable law" provision changes nothing
because its presence or absence does not restrict the issues
that can be raised.

Let me try an example.  I like dogs (at least most of them).
There are probably places and circumstances in which calling
someone a dog (or at least a puppy) in the right tone of voice
is a complement or at least a term of affection.  There are
cultures in which calling someone a dog is pretty close to a
deadly insult.  If such cultures had anti-harassment laws, it
would not be surprising to see a provision that said "calling
someone a dog is bad behavior and could get you fined".

Now suppose someone went on an IETF mailing list and repeatedly
referred to everyone who disagreed with them, interchangeably,
as "filthy dogs" or "vile curs".  Someone who was (in their own
opinion) sufficiently offended could to the Ombudsteam and
complain, with or without the "applicable law" provision.   If
they wanted to point out that the statements were actually
illegal in some place that they considered applicable, I'd
expect the Ombudsteam to pay attention to that in their
considerations, whether the clause exists or not.  So, if the
IESG has gotten legal advice that the IETF would be better
protected with that provision there, what difference do you
think its presence or absence makes to our actual procedures or
actions? 

The offended party would also have the right to (simultaneously
or serially) complain to a WG Chair or list moderator
(optionally making that complaint completely public), asking
that the person using that language be kicked off the mailing
list for being abusive and disruptive.  We have, IMO, adequate
rules to cover cases like that; no harassment-specific policy
needed.   It seems to me that opportunity for a two-pronged
response is something we might want to discuss, on the same "we
already have a procedure for that" basis that led us to what I
will persist in describing as the IESG's exempting itself from
potential parts of the process but I hope the harassment policy
never works to try to prevent people from seeking whatever
remedies for bad behavior the system offers.

But this "applicable law" language seems to be to be little more
than a legally-protective no op -- protective nonetheless
because claiming, even implicitly, to be exempt from applicable
/ local laws in a pretty good way to annoy judges and
judge-annoying is rarely a good strategy.  It is an especially
bad strategy when those judges have the ability to apply
sanctions of one sort or another and to do so without the
constraints of the draft's attempt to draw a boundary between
correction and punishment or retribution.

We may be headed into a time when the IAOC meetings committee
has to evaluate sites to be sure that local situations and
anti-harassment or constrained speech laws will not interfere
with the IETF's operations in the same way that they now check
that Internet access to and from the venue is not sufficiently
filtered to be a problem.   I hope we don't end up having to go
there (although I gather we've at least come close on some
occasions already(.  But, like it or not, the presence or
absence of this provision makes very little difference to
whether such checks are appropriate.

best,
     john

---

From: Michael StJohns <[email-masked]>
Date: Fri, 20 Mar 2015 11:57:09 -0400

>because its presence or absence does not restrict the issues

I want to nit this a bit.   The problem with the applicable law provision is that it blurs the line between what's important to the IETF (e.g. directed harassment of pretty much any color that affects the standards process) with a whole lot of things that can "legally" be considered harassment depending on time, place and participant(s).  If it affects the IETF process, we raise it internally and we resolve it with the remedies at hand (mediation, separation and exclusion).   If its also  (or only) a "legal" issue, we direct the affected participants to engage elsewhere and keep our mitts out of that part of it. 

I would say that John's example is pretty much the definition of directed harassment affecting the standards process.  However,  the mere fact that participant A insults participant B is not necessarily an IETF issue (and I'm glad of this or many of us on this list would have already been excluded).  Doing so in a manner that prevents B from fully participating in the IETF probably is.

Mike

---

From: Nico Williams <[email-masked]>
Date: Fri, 20 Mar 2015 11:43:55 -0500

On Fri, Mar 20, 2015 at 11:57:09AM -0400, Michael StJohns wrote:
> I want to nit this a bit.   The problem with the applicable law
> provision is that it blurs the line between what's important to the
> IETF (e.g. directed harassment of pretty much any color that affects
> the standards process) with a whole lot of things that can "legally"
> be considered harassment depending on time, place and participant(s).
> If it affects the IETF process, we raise it internally and we resolve
> it with the remedies at hand (mediation, separation and exclusion).

Yes.  But see my separate objections as to processes that can lead to
separation and exclusion without due process, and civil liability that
the IETF risks as a result.

> If its also  (or only) a "legal" issue, we direct the affected
> participants to engage elsewhere and keep our mitts out of that part
> of it. 

Yes.  And, of course, if such law purports to bind the IETF to have a
role in enforcing it, then the IETF must consider it, for the obvious
reason that not doing so may incur liability in/as to that locality.  I
think this was part of the intent, and there's nothing wrong with that.

I'm only asking for better text.  The lawyers should not treat us like
children, though explaining their text to us as if we were children is
fine and desirable.

> I would say that John's example is pretty much the definition of
> directed harassment affecting the standards process.  However,  the
> mere fact that participant A insults participant B is not necessarily
> an IETF issue (and I'm glad of this or many of us on this list would
> have already been excluded).  Doing so in a manner that prevents B
> from fully participating in the IETF probably is.

Yes, our discussions sometimes get heated and we don't end up with hard
feelings.  While we should each be careful not to cross certain lines,
we also should not fear for our livelihoods due to heated debates
leading an aggrieved party to file a career-ending secret complaint with
a too-zealous IETF police.

A process that promises confidentiality and can result in exclusion is a
sham and is intolerable, but a process that allows sunlight to shine on
it and which affords the Respondent real due process rights is fine,
acceptable, and highly desirable.

Nico
--

---

From: Michael StJohns <[email-masked]>
Date: Fri, 20 Mar 2015 13:10:39 -0400

>think this was part of the intent, and there's nothing wrong with that.

I've been looking for such a law. In many jurisdictions.  I've been unable to find one.    All of the similar laws have a tighter nexus - e.g. workplace harassment has a nexus with an employer.  The IETF isn't (mostly) the employer of the attendees or participants.  The other SDO's actually have to create a nexus between themselves and their participants with respect to harassment (look at the membership agreements) wherein the members consent to jurisdiction and that doesn't actually create a duty in law for the SDO past that stated in the membership agreement AFAICT. We don't actually have members in the legal sense so its hard to find a nexus where the IETF has a duty in law past those that any organization that holds an in-person meetings would have (e.g. safety issues mostly).

Later, Mike

ps - the closest thing to the above that I've found that's not related to employment are the mandated reporter laws related to child neglect and abuse.   What I've been looking specifically where a third party (e.g the IETF in this case) is responsible for policing the non-physical interactions between two individuals.  Can any one point to a specific law that is NOT employer/employee related?

---

From: Jari Arkko <[email-masked]>
Date: Fri, 20 Mar 2015 13:07:53 -0500

Nico,

> We cannot simply take it, no questions asked.

FWIW, we never take lawyer output as is, it needs to be applied,
discussed and evaluated. This happened in this case as well,
and the resulting change was a product of that process.

I’m not trying to argue that the text cannot be improved, but
I wanted to let you know that the team did not take all
input without questions asked :-)

Jari

---

From: James Woodyatt <[email-masked]>
Date: Fri, 20 Mar 2015 21:56:32 +0100

On Fri, Mar 20, 2015 at 7:07 PM, Jari Arkko <[email-masked]> wrote:

>
> I’m not trying to argue that the text cannot be improved, but I wanted to
> let you know that the team did not take all input without questions asked
> :-)
>

I first read the clause in question as Pete Resnick explained it in
previous messages. I support retaining it.

On Fri, Mar 20, 2015 at 4:57 PM, Michael StJohns <[email-masked]>
 wrote:

> [...]  If its also  (or only) a "legal" issue, we direct the affected
> participants to engage elsewhere and keep our mitts out of that part of it.
> [...]
>

I oppose adoption of that policy. I can't see how that would amount to
anything more than a useless parody of a real process, which is worse than
having none at all.

-- 
james woodyatt <[email-masked]>
Nest Labs, Communications Engineering

---

From: Mark Andrews <[email-masked]>
Date: Sat, 21 Mar 2015 06:57:20 +1100

> abuses of someone's due process and 14th amendment rights.

In many places certain types of harrasment is against the law but
that doesn't preclude mediation, etc. being applied before people
are charged etc.  Harrasment covers a whole spectrum of actions.
Some minor.  Some major.  The perceived severity can vary according
to the history of the people involved.  The whole issue is all
shades of grey.

Having proceedures in place and a willingness to follow them can
prevent people being charged in the first place.  There is often a
lot of disgression about the paths to take.  Being charges creates
a blight of a record even if you are cleared.

Mark
-- 
Mark Andrews, ISC
1 Seymour St., Dundas Valley, NSW 2117, Australia
PHONE: +61 2 9871 4742                 INTERNET: [email-masked]

---

From: "Dan Harkins" <[email-masked]>
Date: Fri, 20 Mar 2015 18:13:21 -0700 (PDT)

> to the history of the people involved.  The whole issue is all

  All the more reason to keep the IETF out of it. If there's going to
be mediation in a criminal matter it should be handled by qualified
and trained specialists appointed by the courts, not a bunch of tech
geeks.

> a blight of a record even if you are cleared.

  So you're saying the local District Attorney (or the functional
equivalent for the jurisdiction that administers the "local law")
is going to say, "oh well the IETF is mediating so we will just drop
the charges"? That sounds extremely naive.

  Dan.

---

From: Spencer Dawkins at IETF <[email-masked]>
Date: Fri, 20 Mar 2015 20:25:44 -0500

I'm trying to be quiet, but on one point ...

On Mar 20, 2015 8:13 PM, "Dan Harkins" <[email-masked]> wrote:
> > In message <[email-masked]
>,
> > "Dan Harkins" writes:
> >>

I may agree with this sentiment, but I'm not sure how this works. In my
limited experience, investigators may be loath to say, "yeah, we're
investigating Spencer on a criminal matter" ...

So I wouldn't be surprised if the Ombudsteam spends time on some percentage
of more serious incidents, and then discovers that, for whatever reason,
the Respondent is also the Defendant.

I don't think this matters, in practice. We probably shouldn't be surprised
the first time it happens.

But (and I'm not kidding), my experience at the IETF since 1996 has been
that at least one active participant has experience with almost every
situation I've seen discussed, no matter how bizarre, so if there are
people reading this thread with direct experience on criminal
investigations, they can share with us, as they find appropriate.

Spencer

---

From: Eric Gray <[email-masked]>
Date: Tue, 24 Mar 2015 16:36:11 +0000

I have some small issues with the wording abstracted below.  Hopefully it is clearer
(or at least less ambiguous) generally, than it is to me.

In the (green) text below, it is ambiguous as to what "prohibited by applicable law"
applies to - the definition, or the harassment it defines.  Intuitively, I suspect that
it is meant to apply to the harassment.

But it is not impossible for some applicable law(s) to explicitly limit the definition of
harassment, and this might be used by malicious individuals to excuse behavior that
might clearly be considered harassment in almost any other context.

I don't know (for certain) about the legal issues with the precise wording, but I'm
reasonably sure this could be worded more clearly.  For example:

"Any form of harassment defined as prohibited  by applicable law can be subject
  to this set of procedures."

As for why this may have been suggested in the first place, it is blatantly obvious
that any organization that allows harassment (however it may be defined) is also
likely to be held accountable for it as the person (or persons) who perpetrate the
harassment itself.

For that reason, I suspect that this was suggested in order to provide a degree of
protection for the IETF, by indicating that an individual that feels they are being
harassed (again by any definition with any applicable legal basis) can avail them-
selves of the procedures being defined.

This does not seem unreasonable to me.

--
Eric

From: ietf [mailto:[email-masked]] On Behalf Of Pete Resnick
Sent: Thursday, March 19, 2015 5:32 PM
To: Michael StJohns
Cc: [email-masked]
Subject: Re: I-D.farrresnickel-harassment - timebomb

Any definition of

   subject to this set of

procedures.

pr

--

Pete Resnick <http://www.qualcomm.com/~presnick/><http://www.qualcomm.com/~presnick/>