Subject: Proposed text for draft-farrresnickel-harassment-06

From: Nico Williams <[email-masked]>
Date: Mon, 23 Mar 2015 14:21:10 -0500

It seems that -06 has more in the way of safeguards and due process than
I had thought, but these aren't very clear, therefore I propose to
clarify them.

OLD TEXT: (section 4, last para)
        [...].  Otherwise, with agreement to proceed from the Subject
   (or the Reporter if there is no individual Subject), the Ombudsteam
   may initiate detailed investigation of the matter, and may
   subsequently impose a remedy as described in Section 5.

I'd like to read this as "may impose a remedy ... after initiating a
detailed investigation ...".  Or even better: "... after completing ...".

This ensures that the facts of the event must have been ascertained to
some degree before imposing remedies other than mediation, at least when
they can be.  A report alone should generally be insufficient to apply
remedies beyond mediation.  On the other hand, pehaps mediation might
not require completing an investigation -- mediation might even help
establish the facts.  But what if mediation fails?  (see also further
below)

NEW TEXT:

        [...].  Otherwise, with agreement to proceed from the Subject
   (or the Reporter if there is no individual Subject), the Ombudsteam
   may initiate detailed investigation of the matter.  Subsequent to
   completion of the detailed investigation, the Ombudsteam may impose a
   remedy as described in Section 5.

OLD TEXT: (section 4.1, last para on page 7)

   When conducting a detailed investigation of the circumstances
   regarding the complaint of harassment, the Ombudsteam may contact the
   Respondent and request a meeting in person or by a voice call.

NEW TEXT:

   When conducting a detailed investigation of the circumstances
   regarding the complaint of harassment, the Ombudsteam may contact the
   Respondent and request a meeting in person or by a voice call.  The
   Ombudsteam shall have contacted the Respondent and either discussed
   the matter, or ascertained the Respondent's unwillingness to
   cooperate, prior to deciding to impose a remedy as described in
   Section 5.

This ensures that Respondents have a chance to participate in the
process, explain themselves, request mediation, demonstrate
understanding and willingness to avoid repetition of the conduct in
question.  This does not mean that a cooperating Respondent is
guaranteed to avoid remedies!  Mediation might fail, the Ombudsteam
might conclude that the Respondent is insincere, repeated offenses might
(should) make mediation unsatisfactory (see earlier point)...  This
allows the Ombudsteam to minimize further harm that uncooperative
Respondents might cause.

I would also allow for immediate but temporary removal pending
completion of the investigation if the alleged conduct is so severe that
completion of the process with the Respondent still participating in
IETF functions is untenable.  I'm not sure how to draft such text.

OLD TEXT: (section 5, first para)

   After examining the circumstances regarding the complaint of
   harassment the Ombudsteam should prepare a brief summary of the
   incident and their conclusions and discuss this with all parties.
   [...]

If we have a requirement that the Ombudsteam have contacted Respondent
then this is fine, otherwise this could be the first contact with
Respondent and then the contact would then be only for the purpose of
conveying the Ombudsteam's conclusion.  See points above.

NEW TEXT: Same as the old if new text proposed for sections 4 and 4.1 is
accepted.

OLD TEXT: (section 5, fourth para)

               [...].  With the agreement of both parties, the
      Ombudsteam can also help to mediate a conversation between the
      Respondent and the Subject (or the Reporter if there is no
      individual Subject) in order to address the issue.

What happens if mediation fails?

NEW TEXT:

               [...].  With the agreement of both parties, the
      Ombudsteam can also help to mediate a conversation between the
      Respondent and the Subject (or the Reporter if there is no
      individual Subject) in order to address the issue.  If mediation
      fails then the Ombudsteam can decide to apply other remedies
      listed here.

I should note that I'm fairly happy with section 4.1, that it addresses
a lot of my earlier concerns (and that I hadn't read this one carefully
enough before), except for the confidentiality concerns.

As to confidentiality, I suppose that there is no need to state obvious
limits as to confidentiality (e.g., legal discovery), but I think it
doesn't hurt to describe some of these limits.

I'm concerned as to how an appeal to the IESG can result in the IESG
determining whether the Ombudsteam performed its due diligence without
inquiring into how the investigation was conducted, and then possibly
leaking details meant to be held in confidence.  I understand and agree
with the desire to preserve confidentiality but I see it as -at the
limit- being fundamentally in tension with the goal of ensuring proper
conduct by the Ombudsteam.  I would consider appeals being heard by a
subset of the IESG if that would help alleviate concerns as to keeping
details confidential.  Before I offer text, I'd like to hear what others
think about this.

This process needn't be entirely like a trial in criminal law courts; we
can make punitive decisions with much less in the way of due process
than criminal courts.  But some degree of due process (if well short of
what one would expect in a criminal case) is highly desirable here, both
for its own sake (to protect the process against abuses, intentional or
otherwise, of the process) and as way to reduce the IETF's liability in
potential civil slander/libel lawsuits.

I am somewhat concerned that because the IETF has participants from many
cultures, misunderstandings will occur that might not be harassment when
taken in context (via mediation).  I'm much less concerned about
cultural clashes where some participants are accustomed to harassment
simply being permissible (or even expected) in their cultures: though
such cases _might_ be handled via mediation once for any Respondent,
they should always result in either non-repetition or in removal
subsequent to repetition.  In cases where Respondents really should have
known better and/or where mediation simply can't put things back to
normal (because Respondent's conduct was extreme), mediation need not be
tried first, only investigation.

We'll be depending on the Ombudsteam to make proper determinations of
what conduct is extreme enough to make mediation unworkable; we should
give them plenty of guidance.  E.g., inappropriate comments might be
appropriate for mediation, but offers or demands to exchange sexual
favors should not be, and abuse of authority never should be appropriate
for mediation.  "Managers", including WG and BoF chairs, should be
trained once emplaced.

Perhaps the Sunday tutorial sessions should now include training about
harassment?  This might be helpful for newcomers.

Finally, I should explain that I don't understand how people can bring
themselves to overtly harass someone (sexually or otherwise), but I do
understand that it happens nonetheless and that we have to deal with it
when it does.  None of the above is intended to imply otherwise nor to
frustrate the process by which we address harassment.

Nico
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From: Sam Hartman <[email-masked]>
Date: Mon, 23 Mar 2015 22:15:46 -0400

Hi.

I will note that many people have expressed concerns about whether the
current document is fair from the point of view of a potential
respondent..  That is another part of building a safe IETF.  If we're
afraid of process and don't have confidence that we'll be treated fairly
when people disagree with us, it can make it hard to participate in
comfort.

I think considering small changes that improve peoples's confidence in
the fairness of the process could be very valuable in helping listen to
these concerns.

The basic principle Nico seems to be going for here is that you get a
chance to respond before a remedy is imposed.

I agree that providing some mechanism for temporary removal may be
important.  I understand the desire to avoid being overly proscriptive.
However lots of folks have been expressing some unease in this area, and
Nico has outlined a simple and hopefully uncontraversial principle.  I
think codifying that is valuable.