From: John C Klensin john-ietf@jck.com
Date: July 18, 2009 3:38:47 PM EDT
To: Marshall Eubanks tme@americafree.tv, Bob Hinden bob.hinden@gmail.com
Subject: [Trustees] Appeal/Request for Review (was: Re: Proposed Revisions to the IETF Trust Legal Provisions (TLP))
Cc: Trustees trustees@ietf.org, rfc-interest@rfc-editor.org, IAB IAB iab@iab.org, ietf list ietf@ietf.org, IESG iesg@ietf.org

--On Saturday, July 18, 2009 12:55 -0400 Marshall Eubanks
tme@americafree.tv wrote:

Hello;

We (the Trustees) have received feedback on the proposed changes to the Trust Legal Provisions (TLP) and have agreed to take the following actions. Since the original call went out on the 23rd of June, the comment period is extended to the 23rd of July.

...

Marshall,

While I believe these changes are all improvements, I also recall several additional sets of comments on the IETF mailing list, including those that addressed the issues of:

(a) The relationship between the multiple-track definitions in RFC 4844 and, in particular, what it describes as the "IETF Track" versus other tracks (IAB, IRTF, Independent Submission) as compared to the apparent assumption of the TLP that all I-Ds and RFCs are IETF documents.

(b) The provisions in the TLP that all IPR policies are to be developed according to the Trustee's interpretation of IETF Consensus. RFC 4844 and long-term practices assume that there are broader, or at least different, communities involved in decisions about policies, including IPR policies, involving non-IETF-track documents.

(c) Members of the community also questioned the process that the Trustees used to develop these policies and whether their content and style exceeded the authority of the Trustees under BCP 101 and the social contract between the Trustees and the community.

Should we assume that these issues (and others that I recall less clearly) were addressed by the Trustees and rejected? If so, why has not the reasoning been supplied as required by BCP 101? Or did they fall through the cracks or were dismissed out of hand, without consideration?

I note that

(1) the standard practice in the community, as exemplified by IESG behavior under the sections of RFC 2026 in which the lengths of Last Calls are specified, are that, if a document is changed in a significant way, a new Last Call is issued, normally with the same duration as the original. The "extension" to July 23 given new text provisions that are announced only on 18 July amounts to a five day comment period on those changed provisions in context with the rest of the document. I suggest that a five day review period not only does not conform to the intent of provisions for comment and review by the community but that it borders sufficiently on abusive for me to request a review of the "operational procedures" of the Trustees, both generally and as they apply to this action.

(2) the Trustees have published no minutes this calendar year, or indeed since September 2008, so the answers to these questions cannot be deduced from those minutes.

(3) failure to publish minutes (only one set of minutes has been published in the last 12 months), or otherwise keep the community informed in a timely way about decisions and actions of the Trustees violates the accountability requirements specified in the first paragraph of Section 3 of RFC 4071, the documentation requirements (including the reasons for decisions) in the fourth paragraph of that section, the requirement for transparency in the fifth bullet of Section 3.2, the "direct accountability" provisions of Section 3.3, and the general tone and agreements that comprised the community discussions leading up to the adoption of RFC 4071 as BCP 101.

(4) the IPR discussion in Section 3 of RFC 4071 authorizes the IASA to "manage" only those IPR rights that "belong to the IETF".

(5) nothing in RFC 4371 modifies the provisions discussed above. The Trustees have the same responsibilities of openness, transparency, accountability, and relationship to the community that the IAOC does and members of the IAOC, whether acting as Trustees or as IAOC members, have those same responsibilities.

(6) the Trustees have published what appears to be, in the language of BCP 101, an "operational procedures" document in the form of the "Administrative procedures of the IETF Trust", dated 20080417 (http://trustee.ietf.org/docs/Trust_Procedures_2008.pdf). Those those procedures appear to contain no provisions at all for consultation with the community or documentation consistent with the openness, transparency, and accountability provisions of BCP 101.

Consequently, by this message to you and copy of this note to the IAOC Chair, and under the provisions of Section 3.5 of RFC 4071, I formally request that the Trustees review their actions, that the IAOC review the actions of the Trustees as part of the IASA process, and that the following actions be taken:

(i) The Trustees take no further action on any non-emergency matter until all minutes are up to date and, either as part of those minutes or otherwise, the Trustees have, as required by BCP 101, explained to the community the reasoning behind past decisions, not just announced those decisions. I believe that the community would agree that "no more than one meeting behind" is a sufficient approximation to "up to date" for this purpose while one set of minutes published with the last twelve months is clearly not;

(ii) For those issues for which the Trustees can identify an emergency requiring immediate action, the provisions of (i) are waived. However, identification of an emergency should require that the emergency and the reasoning supporting that declaration be identified to the community in a way that can be reviewed (even if only after the fact and for future adjustment of procedures). The provisions identified above with regard to openness, transparency, and accountability with regard to the emergency are not waived: the Trustees are still required to report on decisions and the reasoning for those decisions in a manner that is sufficiently timely to give the community opportunity for input unless they can demonstrate to the satisfaction of the community (also if necessary after the fact) that harm would occur from those open and transparent practices.

(iii) The Trustees should never issue a call for comment on any issue lasting less than four weeks unless they can justify the issue as an emergency as described above. Even under emergency circumstances, if there is time for any comment period at all, there is time to explain to the community why that should be shorter than four weeks. To prevent misunderstanding, this request is for an explanation as provided for in BCP 101, not an announcement of a decision by the Trustees that a shorter period is appropriate.

(iv) The Trustees, as a priority matter, explain to the community how policies that assume that all I-Ds and RFCs are "IETF documents" are harmonious, or can be harmonized, with the multi-track model of RFC 4844 and with traditions that go back to RFC 2026 and much earlier for treating documents that are not the result of IETF processes (and that may not have been discussed and reviewed in the IETF). If proper consideration of such documents requires revising the Trust Agreement itself, the Trustees should expeditiously undertake that revision so as to clarify the status of those documents.

(v) With regard to the TLP in particular, the Trustees will provide the community with a summary and review of comments made on the June 23rd version of that document, their decisions about each comment, and the reasoning for those decisions. No comment period on any revised draft will be initiated until after the community has that documentation in hand. This is a requirement that is clearly suggested by BCP 101. While this level of detail should not be necessary, the previous behavior of the Trustees, as described above, indicates that it is a necessary and appropriate remedy.

(vi) The Trustees treat the authorities granted to themselves by the "Administrative Procedures" document as invalid and without force until that document is updated to contain specific provisions for openness, transparency, and accountability, including the provisions for review outlined above, and the rough consensus approval of the community is obtained for that revision.

(v) The Trustees discuss with the IAD (and with themselves as the IAOC) the question of whether production of timely and comprehensive minutes requires professional staffing and, if so, how such staffing can be obtained and covered out of the relevant budgets.

Finally, I wish to note that while BCP 101 gives the Trustees and IAOC 90 days to respond to this request for review and broad discretion about how they respond, taking action on the TLP that would either be irreversible or that would confuse other procedures while the review request is under consideration would constitute grounds for immediate appeal as provided for in Section 3.5 of RFC 4071 and in RFC 2026.

thank you,
John Klensin