Subject: [Iasa20] Updated Trust Agreement - draft

From: "Brad Biddle" <[email-masked]>
Date: Wed, 10 Oct 2018 20:10:29 -0700

Greetings all — at [1] (and attached, although I’m not sure if 
attachments are supported here) is a draft showing proposed changes to 
the Trust Agreement, intended to reflect the changes described in 
https://tools.ietf.org/html/draft-ietf-iasa2-trust-update-01. Some 
background:

* Our drafting strategy here was to follow the amendment model that was 
used with the 2014 Trust Agreement amendment and restatement, which 
largely left the original document alone. This approach creates some 
conceptual weirdness, such as continuing to highlight the 
no-longer-legally-relevant Initial Trustees, but it follows a certain 
logic: the original agreement is changed only the barest minimal degree 
necessary to address the specific issue at hand. Our strategy here was 
to be extremely minimalist, and just make those specific changes 
necessary to reflect the new plan.

* Perhaps even more than in 2014, there is a good reason for this 
strategy: given its 501(c)(3) status, the Trust has to inform the IRS 
that it has updated its governing documents (which the IRS reviewed as 
part of the tax exemption approval process; the update will happen via 
the 990 tax form that the Trust files); we’ll want to be able to 
easily convince the IRS that we have not made any changes that warrant 
them revisiting the Trust’s tax exempt status. If we have to put a 
redline in front of an IRS agent, it’s useful to have as few marked 
sections as possible.

* One practical example of how the minimalist approach worked here: we 
left the definition of IAOC in the Agreement, in order to avoid having 
to change the definition of Initial Trustees (the only remaining place 
where the IAOC definition is referenced). This makes sense from a legal 
drafting perspective, but might cause confusion for reviewers who 
understand that the IAOC is deprecated.

* FWIW, we found that applying the strict minimalism principle was an 
effective organizing principle that kept us off a slippery slope: every 
little tweak we made raised questions about other potential 
tweaks/improvements we *could* make.

* We converted the 2014 Agreement from a .pdf, and then tried to 
reconstruct in the same font/formatting/spacing/etc. as the original. 
You might notice some minor differences in formatting — we weren’t 
able to create a precisely identical document. We did run careful 
technical comparisons to make sure no text was altered in the 
reconstruction process.

FYI we circulated an initial draft of the attached to the Trustees list 
already, and received some feedback that resulted in a small revision. 
Inferring from silence in some cases, my sense is that the current 
Trustees are supportive of this now-updated draft — but certainly 
inputs are welcome from them and all.

[1] 
https://github.com/bradbiddle/legal-and-finance/blob/master/IETF%20Trust%20Agreement%20REDLINE%2020-FEB-14%20v%2010-OCT-18.pdf 
(my fork of the ‘official’ IASA2 finance and legal repository; it 
will also be in that main repository after my pull request gets 
approved.)

Thanks,
Brad
(IETF legal counsel)

Brad Biddle | [email-masked] | +1.503.502.1259 (mobile) | 
http://biddle.law

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 11 Oct 2018 16:28:19 +1300

Brad,

> Our strategy here was 

Loud applause from my corner. This is wise from every point of view.

Having read the redline, I think the whole thing is fine and good to go.

Regards
   Brian

On 2018-10-11 16:10, Brad Biddle wrote:
> _______________________________________________
> iasa20 mailing list
> [email-masked]
> https://www.ietf.org/mailman/listinfo/iasa20
>

---

From: "Livingood, Jason" <[email-masked]>
Date: Thu, 11 Oct 2018 14:38:01 +0000

+1
Good work!

- Jason

PS: Some small nits: 
1 - "IETF nominations committee" is nominating, not nominations, and should probably be capitalized as IETF Nominating Committee (see https://www.ietf.org/about/groups/nomcom/). 
2 - Consider removing the IAOC paragraph and any references to the IAOC.
3 - Consider changing the RFC 7437 mention to BCP 10, since it would seem we'll shortly replace RFC 7437 but the BCP 10 identifier should then point to the successor to RFC 7437.

On 10/10/18, 11:30 PM, "iasa20 on behalf of Brian E Carpenter" <[email-masked] on behalf of [email-masked]> wrote:

    Brad,

    
    
    Regards
       Brian

---

From: Joseph Lorenzo Hall <[email-masked]>
Date: Thu, 11 Oct 2018 12:21:44 -0400

+1
On Thu, Oct 11, 2018 at 10:38 AM Livingood, Jason

-- 
Joseph Lorenzo Hall
Chief Technologist, Center for Democracy & Technology [https://www.cdt.org]
1401 K ST NW STE 200, Washington DC 20005-3497
e: [email-masked], p: 202.407.8825, pgp: https://josephhall.org/gpg-key
Fingerprint: 3CA2 8D7B 9F6D DBD3 4B10  1607 5F86 6987 40A9 A871

---

From: Russ Housley <[email-masked]>
Date: Thu, 11 Oct 2018 12:39:53 -0400

Thanks for the redline.  It makes review much easier.

In my view, if there is any reference to the IAOC in the document means that we have failed to meet our goal.  I think that the definition of "Initial Trustees" can simple point to Schedule B, which should result in no further need for any reference to the IAOC.

Russ

> On Oct 11, 2018, at 10:38 AM, Livingood, Jason <[email-masked]> wrote:
> 
> +1
> Good work!
> 
> - Jason
> 
> PS: Some small nits:

---

From: "John Levine" <[email-masked]>
Date: 11 Oct 2018 12:48:30 -0400

In article <[email-masked]> you write:
>In my view, if there is any reference to the IAOC in the document means that we have failed to meet our goal.  I think
>that the definition of "Initial Trustees" can simple point to Schedule B, which should result in no further need for any
>reference to the IAOC.

I suggested this to Brad a while ago, but I find his rationale
compelling that we want to minimize the changes we have to explain to
the IRS.

The wording doesn't imply the IAOC still exists or that it has any
current effect, only that there was an IAOC that was the initial
trustees.

R's,
John

---

From: Russ Housley <[email-masked]>
Date: Thu, 11 Oct 2018 13:00:11 -0400

> On Oct 11, 2018, at 12:48 PM, John Levine <[email-masked]> wrote:
> 

I do not think this change is hard to explain, and at least four people think the document is better with no reference to the IAOC.

Russ

---

From: Lou Berger <[email-masked]>
Date: Thu, 11 Oct 2018 13:11:20 -0400

Russ,

> I do not think this change is hard to explain, and at least four people think the document is better with no reference to the IAOC.

If we're counting -- I'm with John on this.

I had the same initial reaction, i.e., that IAOC should be removed, but 
then considered the same point John mentioned,  and couldn't really 
identify any substantive problem with the language remaining.  To some 
degree this is like what is being done with the RFC updates - the old 
RFCs and their references to the IAOC  remain part of the historic record.

Lou

---

From: Joseph Lorenzo Hall <[email-masked]>
Date: Thu, 11 Oct 2018 13:19:32 -0400

+1

On Thu, Oct 11, 2018 at 13:11 Lou Berger <[email-masked]> wrote:

> >>> In my view, if there is any reference to the IAOC in the document
> means that we have failed to meet our goal.  I think
> >>> that the definition of "Initial Trustees" can simple point to Schedule
> B, which should result in no further need for any
> >>> reference to the IAOC.
> > I do not think this change is hard to explain, and at least four people
> think the document is better with no reference to the IAOC.
>

---

From: Michael Richardson <[email-masked]>
Date: Fri, 12 Oct 2018 04:19:03 -0400

I read the read-lined document, and the thread.
I agree that keeping the changes as simple as possible makes sense.
I have no problem with the historical reference to the IAOC.

--
Michael Richardson <[email-masked]>, Sandelman Software Works
 -= IPv6 IoT consulting =-

---

From: "Brad Biddle" <[email-masked]>
Date: Wed, 31 Oct 2018 17:00:51 -0700

All — I’ve attached the proposed final amended Trust Agreement, and 
uploaded a copy at [1].

I’ve also attached a markup showing the few changes between this 
version and the version circulated on October 10 (and also posted this 
at [2]).

Lastly, I’ve also attached a markup showing the full set of changes 
between this proposed final version and the current, in-effect Agreement 
(and posted this at [3]).

You’ll see that in this proposed final draft we inserted November 6, 
2018 as the agreement date, under the assumption that the Trustees will 
approve the amended agreement at the Trustee meeting on that date. Of 
course, we can change this as circumstances require.

A copy of this material has been circulated to the Trustees list as 
well.

Thanks to all who commented on the earlier draft — very much 
appreciated.

—Brad

[1] 
https://github.com/bradbiddle/legal-and-finance/blob/master/IETF%20Trust%20Agreement%2031-OCT-18%20PROPOSED%20FINAL.pdf
[2] 
https://github.com/bradbiddle/legal-and-finance/blob/master/IETF%20Trust%20Agreement%20REDLINE%2010-OCT-18%20v%2031-OCT-18.pdf
[3] 
https://github.com/bradbiddle/legal-and-finance/blob/master/IETF%20Trust%20Agreement%20REDLINE%2020-FEB-14%20v%2031-OCT-18.pdf

On 10 Oct 2018, at 20:10, Brad Biddle wrote:

> * Our drafting strategy here was to follow the amendment model that 
> was used with the 2014 Trust Agreement amendment and restatement, 
> which largely left the original document alone. This approach creates 
> some conceptual weirdness, such as continuing to highlight the 
> logic: the original agreement is changed only the barest minimal 
> degree necessary to address the specific issue at hand. Our strategy 
> here was to be extremely minimalist, and just make those specific 
> changes necessary to reflect the new plan.
>
> where the IAOC definition is referenced). This makes sense from a 
> legal drafting perspective, but might cause confusion for reviewers 
> who understand that the IAOC is deprecated.
>
> effective organizing principle that kept us off a slippery slope: 
> every little tweak we made raised questions about other potential 
> FYI we circulated an initial draft of the attached to the Trustees 
> list already, and received some feedback that resulted in a small 
> revision. Inferring from silence in some cases, my sense is that the 
> current Trustees are supportive of this now-updated draft — but 
> certainly inputs are welcome from them and all.
>
>
> [1]