--On Thursday, March 19, 2015 21:45 -0500 Nico Williams
<nico(_at_)cryptonector(_dot_)com> wrote:
The phrase was "applicable law" and that is NOT equivalent to
"local law" in any way, shape or form.
But "applicable law", today, has to be local to some physical
jurisdiction. We're still living in a world of politics with
sharp physical borders. We don't have law creation and
enforcement entities divorced from physical political
entities. Therefore "applicable law" is "local law" in some
sense, at least for now.
...
Nico,
While, at least up to a point, I will defend your right to go as
far down this path as you like, I think it is pointless.
As Pete has pointed out, the text doesn't prevent one from
feeling harassed by behaviors that are not enumerated, nor does
it prevent a discussion with the Ombudsteam over such behaviors,
nor does it prevent the Ombudsteam from taking whatever actions
are permitted by the rules and that they find appropriate if
they agree that what is going on is harassing. I think that is
as it should be, if only because the alternative encourage
hair-splitting of the "I was holding my nose when I said that,
so it doesn't count" variety which actually benefits no one.
In that sense, an "applicable law" provision changes nothing
because its presence or absence does not restrict the issues
that can be raised.
Let me try an example. I like dogs (at least most of them).
There are probably places and circumstances in which calling
someone a dog (or at least a puppy) in the right tone of voice
is a complement or at least a term of affection. There are
cultures in which calling someone a dog is pretty close to a
deadly insult. If such cultures had anti-harassment laws, it
would not be surprising to see a provision that said "calling
someone a dog is bad behavior and could get you fined".
Now suppose someone went on an IETF mailing list and repeatedly
referred to everyone who disagreed with them, interchangeably,
as "filthy dogs" or "vile curs". Someone who was (in their own
opinion) sufficiently offended could to the Ombudsteam and
complain, with or without the "applicable law" provision. If
they wanted to point out that the statements were actually
illegal in some place that they considered applicable, I'd
expect the Ombudsteam to pay attention to that in their
considerations, whether the clause exists or not. So, if the
IESG has gotten legal advice that the IETF would be better
protected with that provision there, what difference do you
think its presence or absence makes to our actual procedures or
actions?
The offended party would also have the right to (simultaneously
or serially) complain to a WG Chair or list moderator
(optionally making that complaint completely public), asking
that the person using that language be kicked off the mailing
list for being abusive and disruptive. We have, IMO, adequate
rules to cover cases like that; no harassment-specific policy
needed. It seems to me that opportunity for a two-pronged
response is something we might want to discuss, on the same "we
already have a procedure for that" basis that led us to what I
will persist in describing as the IESG's exempting itself from
potential parts of the process but I hope the harassment policy
never works to try to prevent people from seeking whatever
remedies for bad behavior the system offers.
But this "applicable law" language seems to be to be little more
than a legally-protective no op -- protective nonetheless
because claiming, even implicitly, to be exempt from applicable
/ local laws in a pretty good way to annoy judges and
judge-annoying is rarely a good strategy. It is an especially
bad strategy when those judges have the ability to apply
sanctions of one sort or another and to do so without the
constraints of the draft's attempt to draw a boundary between
correction and punishment or retribution.
We may be headed into a time when the IAOC meetings committee
has to evaluate sites to be sure that local situations and
anti-harassment or constrained speech laws will not interfere
with the IETF's operations in the same way that they now check
that Internet access to and from the venue is not sufficiently
filtered to be a problem. I hope we don't end up having to go
there (although I gather we've at least come close on some
occasions already(. But, like it or not, the presence or
absence of this provision makes very little difference to
whether such checks are appropriate.
best,
john