On Thu, Mar 19, 2015 at 04:31:50PM -0500, Pete Resnick wrote:
On 3/19/15 2:54 PM, Michael StJohns wrote:
Version -06 of draft-farresnickel-harassment has this small phrase
that was added in this version:
Any definition of
harassment prohibited by an applicable law can be
subject to this set of
procedures.
This was added at the behest of the attorneys that did the legal
review.
So what?
Lawyers give advice. Sometimes it's bad advice but it sounds good in
the bubble in which the advice-giver lives. The fact that they are
lawyers is insufficient. We need to evaluate whether the advice given
is any good, and I aver that we are qualified to do so to a significant
degree.
We can't have a debate with lawyers who don't participate. A process of
consensus building with non-participants... isn't a process of consensus
building.
We can't simply accept what your lawyers say because they are lawyers
and we aren't. We are not entirely unqualified to judge the wisdom of
their proposals. Not only that, but we must be prepared to judge the
wisdom of their proposals even if we are not qualified. And you and the
lawyers must be prepared to respond (or back off). Sure, this isn't
national (or even local) politics and we don't vote here, but
nonetheless, many principles that apply to the former apply here as
well.
I object to:
a) The idea that harassment "based on" anything other than the listed
attributes is OK (it shouldn't be).
The list of attributes given is familiar in the context of
discrimination policies, but here we're dealing with harassment. It
should not be OK to harass someone based on (or not based on anything)
attributes not listed even if it were perfectly permissible to
discriminate on the basis of such attributes.
Harassment is, to paraphrase Justice Potter Stewart, something we know
when we see it. But if there's any risk that we might not agree, then
we really need a process that can recognize uncertainty and which is not
easy to hijack. The process provided in this I-D does not qualify.
b) The idea that we should accept any legal jurisdiction's definition of
harassment (if it happens over mailing lists or IM, which jurisdiction(s)
shall apply?). Certainly we shouldn't limit our definition to that of
legal jurisdictions, but we shouldn't let ourselves be made to use any
particular legal jurisdiction's definition either.
c) Any process where the Respondent isn't afforded an opportunity to
defend themselves. For example, the I-D says that the Ombudsteam "may
contact the Respondent", and so on. There appears to be no guarantee of
any kind to Respondents of their right to mount a defense.
Just how enlightened are we?
Here we have a process that can stain the image of participants whose
livelihoods depend on a clean image, and this process can lend false
legitimacy to claims that don't merit it. This is not good.
One can imagine a case where a Respondent ends up going to court seeking
damages for slander and libel. Some jurisdictions make claim to judge
such cases in spite of very tenuous relation to them. It's one thing if
I say "Joe harassed me" and a very different thing if the IETF says "we
believe Joe harassed Nico and now Joe is forbidden from participating at
the IETF" -- the former might not yield a lawsuit, but the latter might
have very farreaching consequences whether it be defensible or not.
We'd better make sure that when we speak negatively as to entities that
might be harmed by such speech, that such speech is factually correct.
d) Promising more confidentiality protection to any Reporters or
Subjects (victims?) than we can reasonably offer.
Certainly we mustn't promise confidentiality for any material that
becomes the subject of legal proceedings: we cannot resist subpoenas.
But also, in the event of an all-consuming controversy, shining light on
proceedings may be necessary to resolving the controversy.
And anyways, any legalistic procedures without public proceedings and
evidence is hard to distinguish from a sham.
It is important that Reporters know that false reports will be
understood as such and that they are a form of harassment which is too
subject to whatever process we specify for dealing with harassment!
That necessarily limits the degree of confidentiality that can be
afforded to a Reporter in the end.
Obviously any report that can be addressed satisfactorily without
resorting to any sort of judicial-alike process or public redress can
result in complete confidentiality being afforded to all outside the
Ombudsteam (what of future Ombudsteams?). But I think that's as much as
we can promise.
I probably object to other things as well, but I mostly have been busy
and not really studied the I-D in enough detail to formulate an
exhaustive list of objections. Also, I've been hoping that whatever is
adopted, goes mostly unused (because we mostly don't have the sorts of
events that can be deemed harassment and which are serious enough to
require any official investigation and remediation processes, or at
least I've neither observed any nor heard of specific such events,
though I accept claims that some have occurred, but I don't think such
claims are enough to warrant the process outlined in this I-D).
Nico
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