Subject: ASCII diff of ISOC-proposed changes to BCP

From: Harald Tveit Alvestrand <[email-masked]>
Date: Wed, 09 Feb 2005 14:48:47 +0100

As part of considering the changes proposed by ISOC, I integrated the 
changes into the XML document and prepared an ASCII "diff -c" file, editing 
it to remove the noise around changed line breaks.
This may be easier for the issue tracker to integrate than the 
change-marked Word document or the PDF file.

Enclosed.

                      Harald
_______________________________________________
Ietf mailing list
[email-masked]
https://www1.ietf.org/mailman/listinfo/ietf

---

From: Ted Hardie <[email-masked]>
Date: Wed, 9 Feb 2005 09:56:22 -0800

Some comments, using Harald's diff as a starting point.

ISOC has proposed this:

  This document describes the structure of the IETF Administrative
  Support Activity (IASA) as an IETF-managed activity housed within the
  Internet Society (ISOC).

to replace this:

  This document describes the structure of the IETF Administrative
  Support Activity (IASA) as an IETF-controlled activity housed within
  the Internet Society (ISOC) legal umbrella.

Speaking personally, I strongly prefer "controlled" to "managed",
and I believe that the formulations we've used up to now intended
the "under ISOC's wing" view that "IETF-controlled" implies.  Changing
it weakens a formulation that is core to the community consensus
that we've built over time, and I don't think it is a good idea.

ISOC has proposed this:

      Should the IETF standards process at some future date come to include
      other technical activities, the IASA shall use reasonable efforts to
      provide administrative support for those activities as well.

to replace this:

      Should the IETF standards process at some future date come to 
include other
      technical activities, the IASA shall provide administrative support
      for those activities as well.

I can see the desire not to write blank checks, and I suspect the concern
on ISOC's part is that saying IASA provides for support for futuredtechnical
activities implies such a blank check.  I think "use reasonable efforts"
is the wrong set of weasel words, though, as it implies that the IASA
(in some vague fashion) gets to decide what those efforts are.  May I
suggest the following instead:

     Should the IETF standards process change over time, the IAOC will work
     with the IETF community and ISOC BoT to adapt its support so that new
     support activities can be managed under the IASA function.

That's not a blank check, it gets across the idea that new functions stay under
IASA/ISOC and don't go elsewhere, and it focuses the adaptation on the IAOC
as a body (rather than IASA as a function).

In a related note, the proposed changes shift "use reasonable efforts" to
"commercially reasonable efforts" in the following:

   The IASA expects ISOC to use commercially reasonable efforts to build
   and provide that operational reserve, through whatever mechanisms
   ISOC deems appropriate.

I am not sure what, if any, specific meaning this change implies, but I
find it odd that it should occur here and not in the other areas.  I also
found it odd when thinking of a nonprofit (this is likely due to my ignorance
of the term's usage).   But I have expected from other communication that
explicit fund-raising efforts might go into this process of building a reserve,
and it would be nice to have it clarified that efforts of that nature fall into
"commercially reasonable".  Alternatively, using "use reasonable efforts"
in the above makes sense, since a fund-raising entities reasonable efforts
pretty likely include things like endowment/capital campaigns and the like.

ISOC proposes to replace this:

      Within the constraints outlined above, all other details of how to
      structure this activity within ISOC (whether as a cost center, a
      department, or a formal subsidiary) shall be determined by ISOC in
      consultation with the IAOC.

with this:

      Within the constraints outlined above, all other details of how to
      structure this activity within ISOC (whether as a cost center, a
      division, or a wholly controlled affiliate) shall be determined by
      ISOC in consultation with the IAOC.

Again, I am not an expert here, but my reading of "formal subsidiary"
and "wholly controlled affiliate" is not the same.  The issue of control
is a very sensitive one here, and I strongly suggest not using the
term "control" here unless there is an extraordinarily strong reason to do so.
This activity is controlled by the IETF in partnership with ISOC,  through
the offices of the IAOC.  If there are other terms available that do
not muddy those waters, I would strongly prefer that they are used.

Speaking personally,
		best regards,
				Ted Hardie

---

From: [email-masked] (Kai Henningsen)
Date: 09 Feb 2005 21:27:00 +0200

[email-masked] (Harald Tveit Alvestrand)  wrote on 09.02.05 in <72C129C62A634BA0A142446F@B50854F0A9192E8EC6CDA126>:

> !    7.  As bestween, the IETF, IASA and ISOC, the IETF, through the IASA,
           ************

Huh?!

I can't parse that.

MfG Kai

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Thu, 10 Feb 2005 10:56:40 +0100

--On 9. februar 2005 21:27 +0200 Kai Henningsen <[email-masked]> 
wrote:

> [email-masked] (Harald Tveit Alvestrand)  wrote on 09.02.05 in
> <72C129C62A634BA0A142446F@B50854F0A9192E8EC6CDA126>:
>

Lynn said that the ISOC lawyer said that this is standard legal grammar for 
"these are the parties whose relationship the next part of the sentence 
describes".

I agree that it's not normal English.....

---

From: Margaret Wasserman <[email-masked]>
Date: Thu, 10 Feb 2005 06:59:20 -0500

According to my local dictionary, "bestween" isn't even a word.  The 
MS-Word copy that Lynn circulated uses the word "between" here, so 
this is a typo in the ASCII diff.

I am doubtful that "As between, the IETF, IASA and ISOC, the IETF, 
through IASA, shall have..." is not standard grammar, legal or 
otherwise.  Could we ask the lawyer if something was lost in 
translation somwhere?  Or, perhaps there is a more conventional way 
to say this that would also meet with legal approval?

Margaret

At 10:56 AM +0100 2/10/05, Harald Tveit Alvestrand wrote:
>--On 9. februar 2005 21:27 +0200 Kai Henningsen 
><[email-masked]> wrote:
>
>Lynn said that the ISOC lawyer said that this is standard legal 
>grammar for "these are the parties whose relationship the next part 
>of the sentence describes".
>

---

From: "JFC (Jefsey) Morfin" <[email-masked]>
Date: Thu, 10 Feb 2005 16:05:50 +0100

At 10:56 10/02/2005, Harald Tveit Alvestrand wrote:
>Lynn said that the ISOC lawyer said that this is standard legal grammar 
>for "these are the parties whose relationship the next part of the 
>sentence describes".

Sorry, to interrupt your important discussion about legal English grammar 
oddities. But it happens that today is the last day for comments to the 
WGIG. To formulate my own fair comments I need to be confirmed the IETF is 
not interested in addressing the needs they documented as they think they 
have adjusted for a long.

Background. There are may be today 850.000.000 non permanent web watchers 
and spam sufferers using their world digital ecosystem with the IETF end to 
end Internet application, with ICANN as an operator, and may be 50.000.000 
DNs and 97.5% illegitimate DNS root calls. There are also 190 countries 
decided to get a return from their 25 last years efforts in reducing 
computer and bandwidth costs. They issued an RFP under the form of 
Resolutions and Points of actions. They have a last call period ending 
tomorrow.

When you translate their request in rough figures, they want to support 
within 20 years (shorter delays for choices and planning) an extended 
services, broad bandwidth continuity and an interpersonal brain to brains 
(cpu2cpu) ubiquitous and 24/365 space of secure, reliable, fast privacy 
protected multi-exchanges. One can guesstimate 20.000.000.000 stations, 
7.000.000.000 users (or more as individuals have home/office systems), 
probably one or two terra names and more numbers and RFIDs, using 7620 
languages (ISO last current count), 20.000 dialects (last non-ISO very 
reduced count), for 42650 business areas (last UN count) most with their 
proximity risk contained networks, in full respect both of national, 
business, personal privacy, empowerment and sovereignty and of support of 
States regalian services, at a cost and an intergovernance complexity the 
developing countries can foot, so they can bridge the digital divide 
without fearing an e-colonization.

Support to every bidder is available by the 167 years old, Governments 
created, ITU.Competition is at least by the users' own . "InterNAT & co" 
solution.
jfc

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Thu, 10 Feb 2005 17:44:56 +0100

Jefsey,

I think you can take it as a given that the IETF will not be providing any 
explicit input into the WGIG process. ISOC is an active participant in the 
process, and many IETF participants are, but IETF the standards maker is 
not.

Instead, the IETF will continue formulating standards that may help solve 
the problems as they are encountered. That's what the IETF is about.

If that is not what you are talking about, I have failed to understand you 
again. I am certain that I don't know what you mean by "bidder".

--On torsdag, februar 10, 2005 16:05:50 +0100 "JFC (Jefsey) Morfin" 
<[email-masked]> wrote:

> WGIG. To formulate my own fair comments I need to be confirmed the IETF
> is not interested in addressing the needs they documented as they think
> they have adjusted for a long.
>
> and spam sufferers using their world digital ecosystem with the IETF end
> to end Internet application, with ICANN as an operator, and may be
> 50.000.000 DNs and 97.5% illegitimate DNS root calls. There are also 190
> countries decided to get a return from their 25 last years efforts in
> reducing computer and bandwidth costs. They issued an RFP under the form
> of Resolutions and Points of actions. They have a last call period ending
> tomorrow.
>

---

From: Fred Baker <[email-masked]>
Date: Thu, 10 Feb 2005 16:21:04 -0800

Ted:

The suggestions ISOC made were pursuant to our lawyer's comments, so they 
tend to have something to do with legalese. We are asking Skadden&Arps to 
reply to your note. But let me interject...

At 09:56 AM 02/09/05 -0800, Ted Hardie wrote:
>Speaking personally, I strongly prefer "controlled" to "managed", and I 
>believe that the formulations we've used up to now intended the "under 
>ISOC's wing" view that "IETF-controlled" implies.  Changing it weakens a 
>formulation that is core to the community consensus that we've built over 
>time, and I don't think it is a good idea.

On this point, what we (IETF&ISOC) have been discussing is a variation on a 
matrix management operation. ISOC provides the organization and 
organizational support, while the IAD clearly takes operational direction 
from the IAOC, who in turn have a responsibility to the IETF community. 
While we have taken a lot of pains to specify this, because it is 
organizations at work rather than the internals of a company, this is 
something that we have all probably worked in and understand reasonably well.

I think the lawyer's desire for the word "managed" vs "controlled" is 
seeking legal clarity in the terminology here. "Managed" is the usual word 
for what the IAOC does in this context, and "controlled" isn't.

>on ISOC's part is that saying IASA provides for support for future 
>technical activities implies such a blank check.  I think "use reasonable 
>efforts" is the wrong set of weasel words, though, as it implies that the 
>IASA (in some vague fashion) gets to decide what those efforts are.  May I 
>That's not a blank check, it gets across the idea that new functions stay 
>under IASA/ISOC and don't go elsewhere, and it focuses the adaptation on 
>the IAOC as a body (rather than IASA as a function).

Actually, I think your proposed language is a blank check. It states that 
the outcome will be (no way to say "no, that doesn't make sense") support 
for the activity.

"Reasonable efforts" is a standard legal phrase. As your proposed change 
below accomplishes the same thing, I don't understand the need to invent 
phraseology - we should stick to commonly accepted terminology.  We both 
seem to agree that a blank check is not what we're looking for, so where's 
the problem?  In addition, the BCP describes the supporting decision 
process quite well.

The ISOC lawyer's proposed edit, by the way, changes less words than your 
proposed edit.

>found it odd when thinking of a nonprofit (this is likely due to my 
>ignorance of the term's usage).   But I have expected from other 
>communication that explicit fund-raising efforts might go into this 
>process of building a reserve, and it would be nice to have it clarified 
>that efforts of that nature fall into "commercially 
>reasonable".  Alternatively, using "use reasonable efforts" in the above 
>makes sense, since a fund-raising entities reasonable efforts pretty 
>likely include things like endowment/capital campaigns and the like.

Lynn and I just spent some time on the phone talking about this, and we 
couldn't figure out the difference between a "reasonable effort" and a 
"commercially reasonable effort" either. I'll give you that one.

>Again, I am not an expert here, but my reading of "formal subsidiary" and 
>"wholly controlled affiliate" is not the same.  The issue of control is a 
>very sensitive one here, and I strongly suggest not using the term 
>"control" here unless there is an extraordinarily strong reason to do so. 
>the offices of the IAOC.  If there are other terms available that do not 
>muddy those waters, I would strongly prefer that they are used.

This edit was from ISOC's accountant, not the lawyer, but again we're 
talking about the relationships between organizations, and legal language. 
The term "formal subsidiary" didn't mean much to her, so she mentally 
replaced the term with "wholly owned subsidiary" (see 
http://www.investorwords.com/5311/wholly_owned_subsidiary.html). It turns 
out that non-profit corporations don't have wholly-owned subsidiaries; 
"subsidiary" is a legal and accounting term for a commercial corporation. 
Non-profits do have "affiliates" of various kinds (see 
http://www.investorwords.com/136/affiliate.html). I can't seem to find a 
definition on the net for the term "wholly controlled affiliate", but I do 
find a number of places where the term is used. I understand it to mean the 
two organizations are separate but legally related, that one has a 
fiduciary interest in the other but not the other way around, and there is 
no other organization taking such an interest. In the question of "who do 
you sue", the one taking the fiduciary interest is the lawyer-target - 
which has been one of ISOC's roles for over a decade.

Maybe we can agree to call ISOC a non-profit corporation, and the IETF its 
"affiliate"? Legally, so I'm told (IANAL), the relationship doesn't change 
- ISOC is viewed as being legally "in control" and therefore legally "whom 
to sue", and IETF is the child in the relationship. But we can sugar-coat 
that if it makes the fact more palatable. That would make the paragraph read

         Within the constraints outlined above, all other details of how to 
structure
         this activity (whether as a cost center, a division, or an 
affiliate) shall
         be determined by ISOC in consultation with the IAOC.

Alternatively, maybe you could suggest a better *legal* term for the 
relationship?

---

From: Ted Hardie <[email-masked]>
Date: Thu, 10 Feb 2005 17:12:02 -0800

Fred,
	Thanks for your response, and for having Skadden & Arps review
the note I sent.  I understand that we're likely to have a bit of problem with
multiple audiences here (our community not being primarily lawyers, but
our needing to say things that lawyers agree mean what we want them to
mean), and I appreciate your help in working through that issue.
	Some additional comments inline.

At 4:21 PM -0800 2/10/05, Fred Baker wrote:
>Ted:
>
>The suggestions ISOC made were pursuant to our lawyer's comments, so 
>they tend to have something to do with legalese. We are asking 
>Skadden&Arps to reply to your note. But let me interject...
>
>>the "under ISOC's wing" view that "IETF-controlled" implies. 
>>Changing it weakens a formulation that is core to the community 
>>consensus that we've built over time, and I don't think it is a 
>>good idea.
>
>On this point, what we (IETF&ISOC) have been discussing is a 
>variation on a matrix management operation. ISOC provides the 
>organization and organizational support, while the IAD clearly takes 
>operational direction from the IAOC, who in turn have a 
>responsibility to the IETF community. While we have taken a lot of 
>pains to specify this, because it is organizations at work rather 
>than the internals of a company, this is something that we have all 
>probably worked in and understand reasonably well.
>
>I think the lawyer's desire for the word "managed" vs "controlled" 
>is seeking legal clarity in the terminology here. "Managed" is the 
>usual word for what the IAOC does in this context, and "controlled" 
>isn't.

I agree that "managed" is what the IAOC does here.  But the statement is "an
*IETF-controlled* activity", and that's an important difference. 
Looking at the
description of removability in Section 7, there is a clear statement that the
IETF controls the activity to the point that it may decide to re-house it
(though it has no plans to do so and I would certainly oppose such plans at
this juncture).  To me, "control" captures the overall relationship between
the *IETF* and the IASA better than "manage".

Again, I realize that the details are set out in the document, but 
the change proposed
by ISOC is to the Abstract, which will guide the thinking of many readers; I
would appreciate us retaining the original language unless there is a strong
legal reason why we cannot.

>>I can see the desire not to write blank checks, and I suspect the 
>>concern on ISOC's part is that saying IASA provides for support for 
>>future technical activities implies such a blank check.  I think 
>>"use reasonable efforts" is the wrong set of weasel words, though, 
>>as it implies that the IASA (in some vague fashion) gets to decide 
>>what those efforts are.  May I suggest the following instead:
>>
>>That's not a blank check, it gets across the idea that new 
>>functions stay under IASA/ISOC and don't go elsewhere, and it 
>>focuses the adaptation on the IAOC as a body (rather than IASA as a 
>>function).
>
>Actually, I think your proposed language is a blank check. It states 
>that the outcome will be (no way to say "no, that doesn't make 
>sense") support for the activity.
>
>"Reasonable efforts" is a standard legal phrase. As your proposed 
>change below accomplishes the same thing, I don't understand the 
>need to invent phraseology - we should stick to commonly accepted 
>terminology.  We both seem to agree that a blank check is not what 
>we're looking for, so where's the problem?  In addition, the BCP 
>describes the supporting decision process quite well.
>
>The ISOC lawyer's proposed edit, by the way, changes less words than 
>your proposed edit.

I certainly don't want to write a blank check here, and if the language I
suggested filled one out, we should certainly tear it up.  I was trying to get
at two things:  "This is not a blank check" and  "The IAOC has the 
responsibility
to work with the ISOC BoT and the IETF community to work out how to
provide administrative support as the Standards process changes."  This
puts the responsibility in a named set of people who are responsible to the
community and not, say, in the contractors who are carrying out the existing
activities.  This latter case can be a source of frustration to the contractors
and the community.

To try to minimize the change from the original edits, may I suggest this:

      Should the IETF standards process at some future date come to include
      other technical activities, the IAOC is responsible for developing plans
      to provide administrative support for them.

Is that better?

>>In a related note, the proposed changes shift "use reasonable 
>>efforts" to "commercially reasonable efforts" in the following:
>>
>>I am not sure what, if any, specific meaning this change implies, 
>>but I find it odd that it should occur here and not in the other 
>>areas.  I also found it odd when thinking of a nonprofit (this is 
>>likely due to my ignorance of the term's usage).   But I have 
>>expected from other communication that explicit fund-raising 
>>efforts might go into this process of building a reserve, and it 
>>would be nice to have it clarified that efforts of that nature fall 
>>into "commercially reasonable".  Alternatively, using "use 
>>reasonable efforts" in the above makes sense, since a fund-raising 
>>entities reasonable efforts pretty likely include things like 
>>endowment/capital campaigns and the like.
>
>Lynn and I just spent some time on the phone talking about this, and 
>we couldn't figure out the difference between a "reasonable effort" 
>and a "commercially reasonable effort" either. I'll give you that 
>one.

Thank you.

>>Again, I am not an expert here, but my reading of "formal 
>>subsidiary" and "wholly controlled affiliate" is not the same.  The 
>>issue of control is a very sensitive one here, and I strongly 
>>suggest not using the term "control" here unless there is an 
>>extraordinarily strong reason to do so. This activity is controlled 
>>by the IETF in partnership with ISOC,  through the offices of the 
>>IAOC.  If there are other terms available that do not muddy those 
>>waters, I would strongly prefer that they are used.
>
>This edit was from ISOC's accountant, not the lawyer, but again 
>we're talking about the relationships between organizations, and 
>legal language. The term "formal subsidiary" didn't mean much to 
>her, so she mentally replaced the term with "wholly owned 
>subsidiary" (see 
>http://www.investorwords.com/5311/wholly_owned_subsidiary.html). It 
>turns out that non-profit corporations don't have wholly-owned 
>subsidiaries; "subsidiary" is a legal and accounting term for a 
>commercial corporation. Non-profits do have "affiliates" of various 
>kinds (see http://www.investorwords.com/136/affiliate.html). I can't 
>seem to find a definition on the net for the term "wholly controlled 
>affiliate", but I do find a number of places where the term is used. 
>I understand it to mean the two organizations are separate but 
>legally related, that one has a fiduciary interest in the other but 
>not the other way around, and there is no other organization taking 
>such an interest. In the question of "who do you sue", the one 
>taking the fiduciary interest is the lawyer-target - which has been 
>one of ISOC's roles for over a decade.
>
>Maybe we can agree to call ISOC a non-profit corporation, and the 
>IETF its "affiliate"? Legally, so I'm told (IANAL), the relationship 
>doesn't change - ISOC is viewed as being legally "in control" and 
>therefore legally "whom to sue", and IETF is the child in the 
>relationship. But we can sugar-coat that if it makes the fact more 
>palatable. That would make the paragraph read
>
>         Within the constraints outlined above, all other details of 
>how to structure

Using the term "affiliate" in the sentence above is fine with me. 
Thanks again for
your time and effort on this,
			regards,
				Ted Hardie

---

From: Fred Baker <[email-masked]>
Date: Thu, 10 Feb 2005 17:56:42 -0800

At 05:12 PM 02/10/05 -0800, Ted Hardie wrote:
>>seeking legal clarity in the terminology here. "Managed" is the usual 
>>word for what the IAOC does in this context, and "controlled" isn't.
>
>I agree that "managed" is what the IAOC does here.  But the statement is 
>"an *IETF-controlled* activity", and that's an important difference. 
>Looking at the description of removability in Section 7, there is a clear 
>statement that the IETF controls the activity to the point that it may 
>decide to re-house it (though it has no plans to do so and I would 
>certainly oppose such plans at this juncture).  To me, "control" captures 
>the overall relationship between the *IETF* and the IASA better than "manage".
>
>Again, I realize that the details are set out in the document, but the 
>change proposed by ISOC is to the Abstract, which will guide the thinking 
>of many readers; I would appreciate us retaining the original language 
>unless there is a strong legal reason why we cannot.

The legal reason (and again, IANAL, I'm just listening to one) is that 
*legally* the ISOC Board is the legal entity bearing fiduciary 
responsibility, and therefore the entity *legally* in control. Again, the 
"person" in control is the "person" you sue, and suits go to the ISOC Board.

I understand your issue and concern here, I think. What you're thinking is 
"if the IETF wants X, the IAOC is on the hook to make X happen, and the 
IASA/IAD had jolly well better do so. That's control." No problem, among us 
reasonable people, and if I have anything to say about it it will be so. 
But legally, the IAD is bound to do so because the ISOC Board told him/her 
so, putting the ISOC Board in control and seconding that control to the 
IETF. Matrix management and all that.

There are days I scare myself, days on which I begin to understand how a 
lawyer thinks a reasonable man thinks...

>      to provide administrative support for them.

That probably makes more sense. BTW, ISOC and the IASA are logical places 
to look for such. But in this context IASA is the hands and feet and IAOC 
is the brain. So putting the responsibility with the IAOC is probably rational.

>>Maybe we can agree to call ISOC a non-profit corporation, and the IETF 
>>its "affiliate"? Legally, so I'm told (IANAL), the relationship doesn't 
>>change - ISOC is viewed as being legally "in control" and therefore 
>>legally "whom to sue", and IETF is the child in the relationship. But we 
>>can sugar-coat that if it makes the fact more palatable. That would make 
>>the paragraph read
>>
>>         Within the constraints outlined above, all other details of how 
>> to structure
>Using the term "affiliate" in the sentence above is fine with me. Thanks 
>again for

OK, thanks.

Are we in a position to post a -07 draft responsive to these issues? When I 
see such, I am prepared to open a board ballot.

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Fri, 11 Feb 2005 08:40:30 +0100

--On torsdag, februar 10, 2005 17:56:42 -0800 Fred Baker <[email-masked]> 
wrote:

> Are we in a position to post a -07 draft responsive to these issues? When
> I see such, I am prepared to open a board ballot.

As soon as I've seen a couple of hours pass with all parties seeming to be 
reasonably happy, I'll ship -07....

---

From: Dave Crocker <[email-masked]>
Date: Fri, 11 Feb 2005 00:33:34 -0800

>  that we've built over time, and I don't think it is a good idea.

"IETF-managed" means that it is managed by the IETF?  Yet isn't that exactly what it is NOT.  It is an IETF activity, managed by an ISOC employee.

Or maybe the real is really is about control?  

One thing that is likely is that a negotiation that involves this degree of disparity of language also involves strategic disparities between the two groups doing the negotiating.

d/
--
Dave Crocker
Brandenburg InternetWorking
+1.408.246.8253
dcrocker  a t ...
WE'VE MOVED to:  www.bbiw.net

---

From: Margaret Wasserman <[email-masked]>
Date: Fri, 11 Feb 2005 07:03:23 -0500

Hi Dave,

Sitting on both sides of this particular fence, I actually _don't_ 
think that we have a strategic disagreement about who would control 
(using that term in it's normal English sense) this activity.  The 
document is very clear that the IETF makes the rules about how the 
IASA will work (this BCP, for example), the IETF chooses 3/4 of the 
people who will run the IASA (the IAOC), the IAOC selects and hires 
the IAD, the IAOC and IAD to determine the policies, goals, budget, 
priorities and relationships of the IASA, _AND_ the IETF can move 
this function to a different corporate home if the IETF ever decides 
that is a good idea.  The ISOC Board will have to approve some of 
those things (as indicated in this document and other IETF process 
documents), but the IETF is in the driver's seat.

Now, personally, I don't have a strong feeling about whether the word 
"controlled" or "managed" is used in the abstract.  I wrote the 
original text that  is under discussion,  and I don't personally 
believe that either word runs counter to what I said in the first 
paragraph of this message, nor do I believe that either word can 
fully capture what I said in that paragraph.  It is the job of the 
entire document to capture the relationship, and I'm not at all 
concerned about people who just read the abstract to decide how a 
complex function is supposed to work.

But, to a corporate lawyer, the word "control" doesn't seem to mean 
all of the stuff that I listed in the first paragraph...   All of 
that stuff falls under the term "management". "Control" of an 
organization equates to "ownership" and/or "fiduciary 
responsibility".  If I'm understanding this correctly (which I may 
not be), it isn't possible for the Board to give up "control" (in a 
legal sense) of any ISOC-housed activity.  We can allow the activity 
to be completely managed by the IETF, but we are still responsible 
for the activity, and we have a fiduciary responsibility to 
understand the activity well-enough to know that it is being run 
legally and in a way that is consistent with ISOC's legal and tax 
status, etc.

So, with my ISOC Board hat on (a hat which none of the ISOC Board 
members are legally allowed to take off), I am not inclined to ignore 
legal advice from ISOC's corporate counsel.  Maybe the IETF Chair 
could ask the IETF lawyer (Jorge) whether changing the word from 
"controlled" to "managed" has any bad legal implications for the IETF?

Margaret

At 12:33 AM -0800 2/11/05, Dave Crocker wrote:
>>Ý ISOC has proposed this:
>>
>>Ý ÝÝThis document describes the structure of the IETF Administrative
>>Ý ÝÝSupport Activity (IASA) as an IETF-managed activity housed within the
>>Ý ÝÝInternet Society (ISOC).
>>Ý to replace this:
>>Ý ÝÝThis document describes the structure of the IETF Administrative
>>Ý ÝÝSupport Activity (IASA) as an IETF-controlled activity housed within
>>Ý ÝÝthe Internet Society (ISOC) legal umbrella.
>>
>>Ý Speaking personally, I strongly prefer "controlled" to "managed",
>>Ý and I believe that the formulations we've used up to now intended
>>Ý the "under ISOC's wing" view that "IETF-controlled" implies. ÝChanging
>>Ý it weakens a formulation that is core to the community consensus
>>Ý that we've built over time, and I don't think it is a good idea.
>
>
>"IETF-managed" means that it is managed by the IETF?  Yet isn't that 
>exactly what it is NOT.  It is an IETF activity, managed by an ISOC 
>employee.
>
>One thing that is likely is that a negotiation that involves this 
>degree of disparity of language also involves strategic disparities 
>between the two groups doing the negotiating.
>
>
>d/
>--
>Dave Crocker
>dcrocker Ýa t ...
>WE'VE MOVED to: Ýwww.bbiw.net
>
>

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Fri, 11 Feb 2005 13:26:34 +0100

--On 11. februar 2005 07:03 -0500 Margaret Wasserman 
<[email-masked]> wrote:

> So, with my ISOC Board hat on (a hat which none of the ISOC Board members
> are legally allowed to take off), I am not inclined to ignore legal
> advice from ISOC's corporate counsel.  Maybe the IETF Chair could ask the
> IETF lawyer (Jorge) whether changing the word from "controlled" to
> "managed" has any bad legal implications for the IETF?

I asked Jorge, and here's what he said:

> this is a political point rather than a legal one.
> The precise nature of the control/management is described
> elsewhere, so this is just a characterization rather than
> operative (executable) language.

So based on that advice, I'm not inclined to make a fuss over the term..... 
but somewhat surprised that ISOC's lawyer thinks it's fuss-worthy.

                       Harald

---

From: Leslie Daigle <[email-masked]>
Date: Fri, 11 Feb 2005 11:15:33 -0500

For myself, I find the arguments on both sides of "controlled"
and "managed" to be compelling -- perhaps because I am not a
lawyer.

However, I am conscious that the words we write down are scrutinized
and used by people the world over -- not always to our benefit,
and often without any of the context that caused us to write
them [*].

So, if the token really doesn't mean anything (per Jorge) because
the import is in the text of the document, perhaps the right
answer is to just *drop* that clause.

"This document describes the structure of the IETF Administrative
  Support Activity (IASA) as an [delete] activity housed within the
  Internet Society (ISOC)."

That makes the entire abstract:

"
This document describes the structure of the IETF Administrative Support
Activity (IASA) as an activity housed within the Internet Society
(ISOC). It defines the roles and responsibilities of the IETF
Administrative Oversight Committee (IAOC), the IETF Administrative
Director (IAD), and ISOC in the fiscal and administrative support of the
IETF standards process. It also defines the membership and selection
rules for the IAOC.
"

I think this is still clear about where responsibilities lie; the
document defines them in more detail; there is less possibility
for misconception (by using either "controlled" or "managed",
depending on your perspective).

Leslie.

[*] A specific example, in a contribution to ITU re. e164.arpa:

> As can be seen from:
> 	http://www.iana.org/arpa-dom/e164.htm
> the domain “e164.arpa” is delegated to:
> 	Internet Architecture Board (IAB)
> 	c/o IETF Secretariat
> 	Corporation for National Research Initiatives (CNRI)
> 	1895 Preston White Drive
> 	Suite 100
> 	Reston, Virginia 20191-5434
> The IAB has no legal personality of its own, nor does the IETF. So it
> would appear that the legal entity which can control changes to the
> entries under “e164.arpa” is the Corporation for National Research
> Initiatives (CNRI).

The whois entry is written this way because the IAB has no (other)
mailing address.  It does *not* mean that CNRI is in control of
the e164.arpa domain, but that's what this expression apparently
means to people.

It's this sort of thing that leads me to (personally) prefer the
use of the term "controlled", if we're going to use a term. But,
if that term introduces misconceptions on the legal side, I'd
rather just drop the whole thing.

Harald Tveit Alvestrand wrote:
> So based on that advice, I'm not inclined to make a fuss over the 
> term..... but somewhat surprised that ISOC's lawyer thinks it's 
> fuss-worthy.
> 
>                       Harald
> 
>

---

From: Leslie Daigle <[email-masked]>
Date: Fri, 11 Feb 2005 11:52:02 -0500

A couple other comments:

Fred Baker wrote:
>> and "wholly controlled affiliate" is not the same.  The issue of 
>> control is a very sensitive one here, and I strongly suggest not using 
>> the term "control" here unless there is an extraordinarily strong 
>> reason to do so. This activity is controlled by the IETF in 
>> partnership with ISOC,  through the offices of the IAOC.  If there are 
>> other terms available that do not muddy those waters, I would strongly 
>> prefer that they are used.
> 
[snip]
>         be determined by ISOC in consultation with the IAOC.

This works for me.  I wanted to comment because I believe I'm
responsible for some original piece of this text, and the intent
was simply to elaborate that the possibilities for implementation
were varied and not part of what was being specified here.  So, if
one of the example forms was a bogon, it's important to replace it!

Also,

> That probably makes more sense. BTW, ISOC and the IASA are logical
> places to look for such. But in this context IASA is the hands and feet
> and IAOC is the brain. So putting the responsibility with the IAOC is
> probably rational. 

FWIW, I like this proposal.  I don't believe the intention was ever to
create blank cheques, but the IASA as a whole is meant to be
driven by the IETF's needs, and we shouldn't lose sight of that
even as we give the IAOC the necessary tools to push back on
things it can't do.   I think this strikes the reasonable balance.

Leslie.

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Fri, 11 Feb 2005 18:25:34 +0100

--On 11. februar 2005 11:52 -0500 Leslie Daigle <[email-masked]> 
wrote:

>>>      include other technical activities, the IAOC is responsible for
>>>      developing plans to provide administrative support for them.
>>>
>>> Is that better?
>>
>>

Added to edit buffer.

---

From: "Lynn St.Amour" <[email-masked]>
Date: Fri, 11 Feb 2005 19:30:34 +0100

Leslie,

this works for ISOC.

Lynn

---

From: Carl Malamud <[email-masked]>
Date: Fri, 11 Feb 2005 10:44:19 -0800 (PST)

Hi Leslie -

> and "managed" to be compelling -- perhaps because I am not a

Finding both sides compelling makes you very qualified
to be a lawyer.  ;)

<snip>

> answer is to just *drop* that clause.

That makes sense.

Regarads,

Carl

---

From: Ted Hardie <[email-masked]>
Date: Fri, 11 Feb 2005 11:18:05 -0800

>IETF standards process. It also defines the membership and selection

I think this is a very sensible way out of the problem, and
I support it.
			Ted

---

From: Fred Baker <[email-masked]>
Date: Fri, 11 Feb 2005 17:53:12 -0800

So we checked with our lawyer. Unlike the IETF, which is always completely 
smooth in its consensus and never finds experts differing in opinion, it 
would appear that in the legal profession experts can differ in their opinions.

That said, he classed the issue as, in IETF terms, the difference between a 
MUST and a SHOULD. He can live with "controlled".

:^)

---

From: Bob Kahn <[email-masked]>
Date: Sun, 13 Feb 2005 11:03:30 -0500

Leslie,

If the IAOC is intended to provide oversight of the activities and actions 
of ISOC with respect to IETF related matters in the future, then the IAOC 
will need to be independent of ISOC, otherwise the IAOC cannot be an 
effective oversight body. You might as well have ISOC be directly 
responsible for overseeing these activities. Further, it makes little sense 
for IAOC, as trustee for IETF IPR, to negotiate licenses with ISOC if it is 
indeed a part of ISOC.

There needs to be a clear and clean separation here.

Finally, the issue of managed vs controlled is hardly a small matter. It is 
basic and fundamental. If IETF wants to be in charge, they should take 
steps to assure that. As it is, all that would be happening, in the guise 
of putting IETF in charge, would be to put ISOC in charge, even if ISOC was 
willing to take guidance from the IAOC.  In the language below, this now 
comes down to what is meant by "housed" in this context.

Clarity is needed on this important point . For example:

>"This document describes the structure of the IETF Administrative Support 
>Activity (IASA) as an [delete] activity housed within the
>  Internet Society (ISOC).  [new] The IASA has two constituent elements: 
> IAD and IAOC.  As an employee of ISOC, the activities of the IAD will be 
> subject to ISOC supervision;  however, the IAOC serves as and independent 
> oversight body on behalf of the IETF, and, as such, will not be subject 
> to ISOC control."

The IETF would control the IAOC, not ISOC. It is essential not to be 
ambiguous here..

bob
At 11:15 AM 2/11/2005, Leslie Daigle wrote:

>>the domain "e164.arpa" is delegated to:
>>entries under "e164.arpa" is the Corporation for National Research
>>Initiatives (CNRI).
>
>>term..... but somewhat surprised that ISOC's lawyer thinks it's fuss-worthy.
>>                       Harald
>>

---

From: Leslie Daigle <[email-masked]>
Date: Mon, 14 Feb 2005 13:10:45 -0500

Bob,

My point was that the abstract text should not be at odds with
the body of the document, or otherwise be misleading.

The important aspects of the definition of the IAOC and
its relationship to the IASA and ISOC are contained in the
body of the document.

Leslie.

Bob Kahn wrote:
> Leslie,
> 
> If the IAOC is intended to provide oversight of the activities and 
> actions of ISOC with respect to IETF related matters in the future, then 
> the IAOC will need to be independent of ISOC, otherwise the IAOC cannot 
> be an effective oversight body. You might as well have ISOC be directly 
> responsible for overseeing these activities. Further, it makes little 
> sense for IAOC, as trustee for IETF IPR, to negotiate licenses with ISOC 
> if it is indeed a part of ISOC.
> 
> Finally, the issue of managed vs controlled is hardly a small matter. It 
> is basic and fundamental. If IETF wants to be in charge, they should 
> take steps to assure that. As it is, all that would be happening, in the 
> guise of putting IETF in charge, would be to put ISOC in charge, even if 
> ISOC was willing to take guidance from the IAOC.  In the language below, 
> this now comes down to what is meant by "housed" in this context.
> 
>>  Internet Society (ISOC).  [new] The IASA has two constituent 
>> elements: IAD and IAOC.  As an employee of ISOC, the activities of the 
>> IAD will be subject to ISOC supervision;  however, the IAOC serves as 
>> and independent oversight body on behalf of the IETF, and, as such, 
>> will not be subject to ISOC control."
> 
> 
>>>> members

---

From: Bob Kahn <[email-masked]>
Date: Mon, 14 Feb 2005 13:39:55 -0500

Leslie,

Where in the body of the document does it say that the IAOC is independent 
of ISOC. This could have been clarified but was not. I believe it needs to 
be explicit.

bob

At 01:10 PM 2/14/2005, Leslie Daigle wrote:

>>is basic and fundamental. If IETF wants to be in charge, they should take 
>>of putting IETF in charge, would be to put ISOC in charge, even if ISOC 
>>was willing to take guidance from the IAOC.  In the language below, this 
>>now comes down to what is meant by "housed" in this context.
>>> IAD and IAOC.  As an employee of ISOC, the activities of the IAD will 
>>> be subject to ISOC supervision;  however, the IAOC serves as and 
>>> independent oversight body on behalf of the IETF, and, as such, will 
>>> not be subject to ISOC control."
>>

---

From: Rob Austein <[email-masked]>
Date: Wed, 16 Feb 2005 02:44:34 -0500

> to say this that would also meet with legal approval?

For reference, the complete text in question is:

   7.  As between, the IETF, IASA and ISOC, the IETF, through the IASA,
       shall have a perpetual right to use, display, distribute,
       reproduce, modify and create derivatives of all software and data
       created in support of IETF activities.

and the change from -06 to -07 was the addition of the prefix "As
between, the IETF, IASA and ISOC,".

I'd like to second Margaret's request.  While I'm certainly not a
lawyer, I am reasonably confident that I understand both grammer and
punctuation for the major dialects of English, and I'm pretty sure
that the new text simply does not parse.  For all I know it's flawless
Early High Canal Martian, but IETF documents are supposed to be
written in English, and this new text is not.

Ordinarily I'd consider this a purely editorial issue, but since the
text in question was dictated by a lawyer: Lynn (or Harald, or
somebody) could you please either get ISOC's lawyer to rephrase the
new text in the vernacular or let us revert to the -06 version of this
paragraph?

In view of Harald's ticking clock: I have no problem with treating
this as an editorial issue if ISOC's lawyer tells us that's all it
is.  If this was intended to be a substantive change, we need an
explanation for what it was supposed to mean.

Last, for those wondering how one of the document editors could be
puzzled by text that ended up in the document: even editors take time
off, at least this one does, when it's ski season.

Thanks!

---

From: Harald Tveit Alvestrand <[email-masked]>
Date: Wed, 16 Feb 2005 11:38:16 +0100

Lynn - can you get the Skadden & Arps lawyer to either defend or modify his 
sentence?

It just looks too ungrammatical to escape comment.... and the RFC Editor is 
sure to try to "fix" it too.

                 Harald

---

From: Lyman Chapin <[email-masked]>
Date: Wed, 16 Feb 2005 12:36:50 -0500

<snip>
>responsibility".

Margaret,

In support of your interpretation, it's worth pointing out that in 
U.S. corporate management structures, the "Controller" is "An officer 
who audits accounts and supervises the financial affairs of a 
corporation or of a governmental body."

- Lyman