Subject: [Iasa20] Fiduciary duties and temporal power (was: 6635bis)

From: Richard Barnes <[email-masked]>
Date: Tue, 30 Apr 2019 20:53:23 -0400

Hey all,

I thought that the "go to jail" part of Sean's message didn't come through
quite strongly enough, and there seems to be persistent confusion about who
can reasonably do what in this relationship between IETF/IAB on the one
hand and ISOC/LLC on the other.  So I wanted to frame out how I've been
thinking about this relationship, which might help clarify what some folks
are thinking here.

tl;dr:
- Fiduciary duties trump RFCs
- RFCs are thus constrained, but still useful
- Temporal power isn't everything

The brute fundamental fact here is that there is nothing the IETF or IAB
can do to constrain the board or management of ISOC and the LLC to do
something that they view as contrary to the interests of those
organizations.  In the parlance, this is known as the Duty of Loyalty [1],
and the directors and officers of those corporations can be sued or jailed
if they breach it.  Nothing in an RFC will cause any sane board member to
violate their fiduciary duties.

A natural consequence of that fact is that it's not useful to have RFC text
that, if followed, could cause the LLC's management to breach their
duties.  Rather, the RFCs describing the relationship should focus on
establishing what the LLC should do where it isn't already constrained by
law -- which is a lot!

All that said, the IETF and IAB do have certain powers that are unalienably
theirs.  Just like only the Pope can name consecrate a bishop [2], only the
IAB can name an RSE, RFC Publisher, etc.  The LLC can terminate the
contract or employment of the person named RSE, but they cannot take that
person's status as RSE away.

As I said long ago at the IASA2 BoF, good fences make good neighbors [3].
An RFC can't constrain the LLC to do something illegal, so we shouldn't
try.  Our effort would be much better spent focusing on clear descriptions
of how we expect the LLC to be have in the ways that matter.

--Richard

[1] <https://www.law.cornell.edu/wex/duty_of_loyalty>, among other duties
[2] Within the bounds of that tradition
[3] Yes, I know that's not what the poem means, but it's true here