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 --