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Re: ASCII diff of ISOC-proposed changes to BCP
2005-02-10 18:16:38
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...
At 09:56 AM 02/09/05 -0800, Ted Hardie wrote:
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.
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.
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
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:
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).
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:
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.
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.
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.
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?
Using the term "affiliate" in the sentence above is fine with me.
Thanks again for
your time and effort on this,
regards,
Ted Hardie
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