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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