Subject: Re: [Iasa20] I-D Action: draft-ietf-iasa2-rfc5377bis-00.txt

From: "Livingood, Jason" <[email-masked]>
Date: Tue, 25 Sep 2018 16:51:29 +0000

Very helpful - just the discussion we wanted to have. Can you expand on that a bit more fully, particularly given your Trust experience? 

The original text:
Appeals of the actions of the Trustees of the IETF Trust are governed by other documents.  As the Trustees are the members of the IAOC, the appeals procedure documented in BCP 101 (currently [RFC4371]) is applicable.

The proposed text:
Appeals of the actions of the Trustees of the IETF Trust are to be directed to the IETF Administration LLC.

So what should the text say instead?

Jason

On 9/25/18, 2:05 AM, "John Levine" <[email-masked]> wrote:

    In article <[email-masked]> you write:
    >This was on our long list of docs that the WG agreed to update. Joel was the prior document editor and graciously agreed
    >to perform this update for the WG. There were 3 references to the IAOC in the old RFC at
    >https://tools.ietf.org/html/rfc5377. Two were simply removed. 
    >
    >The final one pertained to appeals, which was changed from the IAOC to the LLC. The reason is that the IASA structure
    >has changed but this was not intended to negate the appeals process. 
    >
    >Any thoughts or feedback for Joel?
    
    As far as I know, there has never been an appeal of a trust decision,
    but the LLC doesn't seem like the right place for it, since what the
    trust does and what the LLC does have nothing to do with each other.
    I suppose the IESG would make more sense.

---

From: "John R Levine" <[email-masked]>
Date: 25 Sep 2018 10:11:55 -0700

> Very helpful - just the discussion we wanted to have. Can you expand on that a bit more fully, particularly given your Trust experience?

Were there to be an appeal of a Trust action, it would presumably be on 
the basis that the action is inconsistent with RFCs 5377 and 5378.  Those 
are IETF consensus documents, which says to me that the appeal goes to the 
IESG.

Except that the whole thing is a crock -- the trust is governed by the 
trust agreement, which has never had any provision for appeals.  My 
suggestion would be to delete the two sentences about appeals, and to keep 
in mind that if the IETF is sufficiently upset with the actions of the 
Trust, we can recall the trustees and appoint someone else.

Inventing an appeals process strikes me as an unproductive can of worms. 
What would the legal status of a Trust decision be if it could be 
changed by someone other than the trustees?  Let's not find out.

Regards,
John Levine, [email-masked], Taughannock Networks, Trumansburg NY
Please consider the environment before reading this e-mail. https://jl.ly

---

From: Ted Hardie <[email-masked]>
Date: Tue, 25 Sep 2018 10:16:14 -0700

On Tue, Sep 25, 2018 at 9:51 AM, Livingood, Jason <
[email-masked]> wrote:

> Very helpful - just the discussion we wanted to have. Can you expand on
> that a bit more fully, particularly given your Trust experience?
>
> The original text:
> Appeals of the actions of the Trustees of the IETF Trust are governed by
> other documents.  As the Trustees are the members of the IAOC, the appeals
> procedure documented in BCP 101 (currently [RFC4371]) is applicable.
>
> The proposed text:

The more I think about this, the more this appeals chain worries me.  The
IETF Trust is an independent legal entity, and setting this appeals chain
implies something pretty different.   I think the Trust and the LLC serve
the same community, but in parallel, not in series.

I'd be more comfortable, honestly, with appeals going to the IESG, as a
representative of the community being served.  But even that has to go into
the Trust agreement in order to have real force.  Realistically, I'd say at
the moment an actual dispute would require either recalling the Trust
members or  a lawsuit.

Ted

---

From: Spencer Dawkins at IETF <[email-masked]>
Date: Tue, 25 Sep 2018 14:53:42 -0500

> the moment an actual dispute would require either recalling the Trust

We often remind people in the IETF that the first step in appealing a
decision is to talk to the person/group who made the decision, and ask
"when you said X, did you think about Y, which seems to indicate that doing
X would be the wrong decision", or something along those lines. One can
always turn up the heat if that doesn't work.

So, if s/recall or lawsuit/conversation, recall, or lawsuit/ is agreeable
to Ted, I agree with Ted, and I agree with John that coming up with an
appeal process now, without time to do a good job, is probably the wrong
answer in any case.

Would

---

From: Bob Hinden <[email-masked]>
Date: Tue, 25 Sep 2018 15:55:15 -0400

Ted, John,

> On Sep 25, 2018, at 1:16 PM, Ted Hardie <[email-masked]> wrote:
> 
> On Tue, Sep 25, 2018 at 9:51 AM, Livingood, Jason <[email-masked]> wrote:
> The more I think about this, the more this appeals chain worries me.  The IETF Trust is an independent legal entity, and setting this appeals chain implies something pretty different.   I think the Trust and the LLC serve the same community, but in parallel, not in series.
> 
> I'd be more comfortable, honestly, with appeals going to the IESG, as a representative of the community being served.  But even that has to go into the Trust agreement in order to have real force.  Realistically, I'd say at the moment an actual dispute would require either recalling the Trust members or  a lawsuit.  

From reading John’s email, I think he is right.  The trustees have a fiduciary duty to what is says in the Trust agreement.   By it’s nature, there can’t be an appeals chain that can override the IETF Trust.  

The IETF Trust would be unwise to not be talking with the IETF community, but as a last resort we do have the NomCom process to appoint new Trustees.  Let’s hope we never get to a lawsuit.

Bob

---

From: "John R Levine" <[email-masked]>
Date: 25 Sep 2018 13:29:32 -0700

> The IETF Trust would be unwise to not be talking with the IETF community, but as a last resort we do have the NomCom process to appoint new Trustees.  Let’s hope we never get to a lawsuit.

We can hope for wisdom, but it is a fool's errand to try to legislate it.

Regards,

---

From: Brian E Carpenter <[email-masked]>
Date: Wed, 26 Sep 2018 08:37:58 +1200

> We can hope for wisdom, but it is a fool's errand to try to legislate it.

As far as I can see, the same argument applies to the LLC, where we also
have no appeal chain defined.

   Brian

---

From: "John R Levine" <[email-masked]>
Date: 25 Sep 2018 13:44:53 -0700

> have no appeal chain defined.

Same thing, we can recall the members if we are sufficiently motivated.

Regards,

---

From: Ted Hardie <[email-masked]>
Date: Tue, 25 Sep 2018 14:16:58 -0700

> Same thing, we can recall the members if we are sufficiently motivated.

*In extremis*, the ISOC Board of Trustees is an appeal chain, under section
11 b of the LLC Agreement:

Member remedy.

Member shall promptly discuss any perceived breach of these obligations
with Company, and Company and Member will cooperate in good faith to
resolve the issue. If, after written notice and a substantial opportunity
to cure, the Company remains in material breach of its obligations under
this Section 11, then Member shall have the right to unilaterally dismiss
any or all of the individuals then serving as Directors of the Company and
to replace them with individuals selected by Member in the Member’s
discretion. This right supersedes any contrary terms in this Agreement or
in any applicable RFC or similar document. Member shall only take such
action in good faith after notice to and consultation with the affected
communities, including the IETF, IRTF, and IAB, and in the belief that the
action is in or not opposed to the best interest of the Company.

Again, the first line of appeal is the one Spencer pointed out:  talk to
the LLC Board and the community.  There's a fair chance that that alone
will suffice.  If it does not, recall or an appeal to the ISOC Board to
seek remedy are available.

regards,

Ted Hardie