Subject: Re: Adminrest: IASA BCP: Separability

From: Brian E Carpenter <[email-masked]>
Date: Wed, 01 Dec 2004 15:41:50 +0100

Bernard Aboba wrote:
> Jon Peterson said:
> 
> "I think there is a concern in the community that the IETF needs some way
> to ensure that it is not "locked in" to any solution we adopt at this
> stage."
> 
> If this is the problem that we are attempting to address, then the
> document needs to articulate the principles to be followed in order to
> ensure this, rather than trying to micro-manage aspects of the IASA
> operation.
> 
> For example:
> 
> a. If the goal is to ensure transparency and accountability, then it might
> be useful to provide separate financial statements for the IASA,
> including income statements and balance sheets.
> 
> b.  If the goal is to ensure separability, then a separation agreement is
> required, detailing what assets will belong to the IASA upon separation.
> Note that such a "prenup" agreement is distinct from principles of IASA
> operation, such as recommended levels of working capital, and usually
> requires agreement from the other party.
> 
> c.  If the goal is to ensure that IASA will retain rights to  intellectual
> property created using its funds, then that should be stated explicitly.
> 
> d.  If the goal is to retain maximum freedom of operation, then it might
> be advisable to keep the budget in balance over the long term.
> 

Yes, I've always assumed there will be an MOU between IETF and ISOC,
both to recognize the BCP when we have it, and to make explicit some
of these boundary conditions.

    Brian

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From: Margaret Wasserman <[email-masked]>
Date: Wed, 1 Dec 2004 12:34:09 -0500

>of these boundary conditions.

This is interesting, because I had not assumed that there would be a 
separate MOU...

Who do you think would negotiate the MOU on behalf of the IETF?  And 
who would sign it?

Margaret

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From: Carl Malamud <[email-masked]>
Date: Wed, 1 Dec 2004 12:00:30 -0800 (PST)

> Who do you think would negotiate the MOU on behalf of the IETF?  And 

I must admit, I share Margaret's reaction.  I assumed the BCP was the
governing document and wouldn't necessarily have to be supplemented
with a codified set of supplements and interpretations.  :)

Carl

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From: Geoff Huston <[email-masked]>
Date: Thu, 02 Dec 2004 07:07:20 +1100

At 04:34 AM 2/12/2004, Margaret Wasserman wrote:

>Who do you think would negotiate the MOU on behalf of the IETF?  And who 
>would sign it?

I'm also slightly surprised by this perspective (a distinct MoU). I had 
though that the process we were following was that this IASA BCP would be a 
document that was formally accepted by both the IETF (through the BCP 
publication process) and by ISOC (possibly through a formal resolution of 
adoption by the Board of Trustees).

So the specific questions that this raises for me would be: What 
specifically would be in an MoU between the IETF and ISOC that is not in 
this IASA document? (your comment about making explicit some of the 
boundary conditions does not shed much light on what you mean here 
unfortunately) Also, what would preclude such items (if there are such) 
from inclusion in the IASA document?

(I thought Carl's <section title="Community Consensus and Grant of 
Authority"> covered this appropriately, by the way, so I'm curious about 
the comment that this is not sufficient)

regards,

    Geoff

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From: Sam Hartman <[email-masked]>
Date: Wed, 01 Dec 2004 16:35:17 -0500

>>>>> "Margaret" == Margaret Wasserman <[email-masked]> writes:

    Margaret> At 3:41 PM +0100 12/1/04, Brian E Carpenter wrote:
    >> Yes, I've always assumed there will be an MOU between IETF and
    >> ISOC, both to recognize the BCP when we have it, and to make
    >> explicit some of these boundary conditions.

    Margaret> This is interesting, because I had not assumed that
    Margaret> there would be a separate MOU...

I had sort of assumed this BCP would be the MOU to the extent that one
existed.
  I don't object to other arrangements though.
--Sam

---

From: [email-masked]
Date: Thu, 2 Dec 2004 00:54:07 +0100

> I had sort of assumed this BCP would be the MOU to the extent that one

I think that there has to be an equivalent document on the ISOC side as 
indicated by Geoff, i.e. a document indicating acceptance of the BCP as 
governing the relationship.  And these documents should take effect at 
essentially the same time.

Since, ISOC, under current rules, if I understand them correctly, needs 
to approve BCP's that change IETF processes, it should be easy for the 
two documents to be approved, and thus put into effect, simultaneously.

Perhaps there should be wording in this document indicating how and 
when it takes effect.

a.

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From: Bernard Aboba <[email-masked]>
Date: Wed, 1 Dec 2004 19:52:03 -0800 (PST)

> adoption by the Board of Trustees).

I think that is the process we are following, and it seems like an
appropriate process for a document that describes "normal operating
procedures" for the IASA.  As Rob said, the IASA BCP seems to implicitly
assume that we trust ISOC, and I have no problem with that given the
ground that the document currently covers.

However, the IASA BCP doesn't seem to be focussed on "off design"
conditions, such as those that are likely to cause (or result from) a
dispute.

For example, we might like to prescribe binding arbitration to avoid
spending time in court,  or describe the circumstances under which
the IETF can demand an audit, or define the ownership of IPR and/or
funds if and when a separation occurs.  These are the kind of things which
might have to stand up in a court of law, so I'm not clear that a BCP
agreed upon by the IETF community and handed to ISOC will fit the bill.

I should also note that the current IASA BCP is quite vague about how the
ISOC is to assist the IASA in reaching the desired level of working
capital.  One could interpret this as being purely an IASA operating
decision (e.g. if you want more working capital, raise the meeting fees to
obtain it).  However, from the discussion, I gather that at least some
participants have something else in mind -- a sort of "ISOC dowry"
provided upon conclusion of the arrangement.  This seems like something
that both parties need to be clear about, and agree to.

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From: Harald Tveit Alvestrand <[email-masked]>
Date: Thu, 02 Dec 2004 07:55:25 +0100

> essentially the same time.

With other IETF process documents, such as 2026 and NomCom, that document 
has been the minutes of the ISOC BoT showing that they have accepted the 
procedure as written.

> Perhaps there should be wording in this document indicating how and when
> it takes effect.

That makes sense.

---

From: Brian E Carpenter <[email-masked]>
Date: Thu, 02 Dec 2004 09:11:27 +0100

> that both parties need to be clear about, and agree to.

Yes. I have a feeling that even with the BCP approved by the IESG
and by an ISOC Board motion, we would still need a piece of paper with
ink signatures - it might only say that the IETF and ISOC agree to the
terms of the BCP - it might also contain termination clauses about
money and IPR, if the termination clauses aren't in the BCP. In any
case it would be very short.

     Brian

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From: Harald Tveit Alvestrand <[email-masked]>
Date: Thu, 02 Dec 2004 11:43:23 +0100

--On torsdag, desember 02, 2004 09:11:27 +0100 Brian E Carpenter 
<[email-masked]> wrote:

>> decision (e.g. if you want more working capital, raise the meeting fees
>> to obtain it).  However, from the discussion, I gather that at least some

my lawyer-paranoia may get the better of me, but.... if the IETF remains a 
legal "null", I have to wonder what my signature on a piece of paper means, 
or could be made to mean..... I've passed this to Jorge (lawyer) for an 
opinion.

                       Harald

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From: Carl Malamud <[email-masked]>
Date: Thu, 2 Dec 2004 08:06:10 -0800 (PST)

> case it would be very short.

In terms of the ink, you can go that route if you want, but having this
bcp go through the entire public bcp procedure and then get voted on by
the isoc board in a meeting with minutes makes a pretty conclusive
case that you have an agreement.  I don't think a judge is going to
throw this out because you didn't use a #2 pencil or blue ink.  :)

In terms of clauses, it seems to me that if you're going to do termination
clauses, or anything else with that kind of substance, they need to
get into the BCP.  You really want a single chartering document for
the activity.  And, my "sense of the room" is that people aren't
going to be happy to put this doc to bed only to start a similar
exercise right up.  :)

Let's get the substance into the one doc.  You brought up termination clauses.
If you're doing that, you probably want a mandatory arbitration/mediation
or other conflict resolution clause.  You could certainly leave
those both out and have a nice agreement, but it sort of sounds to me
like enough people want to face those issues now.

Regards,

Carl

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From: "JFC (Jefsey) Morfin" <[email-masked]>
Date: Thu, 02 Dec 2004 13:35:18 +0100

>case it would be very short.

Don't you think that at this stage a top international lawyer is of the 
essence to this process, to address/validate the current points and to 
avoid to mare the future of this list and IETF for years with 
administrative feuds. I would suggest Harald to call Joe Sims as he is no 
more involved in any governance body, is known from most (cons and pros) 
and has a complete understanding of its structures and of their legal 
implications. To respect the current US nexus (it will change later but we 
need to go fast), I would suggest that someone of serious international 
stature, Internet experience and not invoved in the current debate (such 
Ira Magaziner?) to be also called upon for advice concerning the necessary 
international posture to adopt.

Let be clear. The IETF is here discussing its survival. The world (UN, 
WSIS, Govs, Defense, Commerce, IP, etc.) is currently identifying the 
problem of intergovernance of its digital ecosystem; and that the academic 
legacy of the Internet system may (heuphemism) not fullfil the job. It will 
probably soon discover what we discovered during the ICANN preparation 
debate: the Internet intergovernance model may serve for other similar 
problems (water, energy, ecology, etc.) and is of similar importance. This 
will rise more interest. The budgets the DoD puts into the NCW/NCO 
networking support and the various alternatives investigated around the 
world to its huge and vulnerable statellite centric (and non commercial) 
approach will lead to major technology reviews, totally out of the current 
internet commercial control. Anyway, one may suppose that the report and 
the vote of the Tunis recommendation (pre-Treaty?) will define a new 
framework to which the rules you discuss will have to adapt.

One does not participate at this level into such an intergovernance/debate 
with the structure you plan, nor under the only umbrella of ISOC. The best 
proof I can give is that today the WGIG which is to report to Kofi Annan on 
the future of the Internet Governance includes 40 Members, with A. Pisanty 
(ICANN), V. Bertolla (ALAC), R. Echeberria (RIR), and no one from ccTLD 
(who form the real frame of the Internet - RFC 1591), no one from IAB 
(which was the first entity which should have been polled IF the intent was 
to keep the Internet as a core system), no one from IESG (so it is likely 
ther Internet will not be the adherence to the Internet standard process), 
only Avri Doria is understood as from the IETF (but she introduce herself 
as a Civil Right representative). I note there is an ICANN plan, there is a 
letter of Mr. Zhao for ITU, there are contributions or positions by most of 
the concerned entities, there is not even a draft from IETF. Is this a bet 
that IETF and its technological vision of the Internet is here forever, an 
underevaluation of what is at stake, or the acknowledgment the "I" in IETF 
stands for IPv4 (plus its support of longuer IPv6 addresses) but no target 
for more?

Any position is acceptable. But should it not reflect a consensus?
jfc

May I note the IETF structure definitly needs a banking account, what in 
our world defines a non-declared structure and shows the desire of 
transparency of the members of the governance (otherwise everyone involved 
in the management is legally accountable and should be insurred 
appropriately. This is an issue for every candidacy to ICANN - ask Carl 
Auerbach. But ICANN is a de facto US agency, with a dedicated Californian 
structure. What you have in mind is internationnally far less clear. I 
suppose that in many countries members of the IETF mailing list could be 
subpoenaed as participants to the IETF structure in case of a major problem 
resulting from an RFC all the more if this leads to a critical situation).

I also note that

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From: Geoff Huston <[email-masked]>
Date: Fri, 03 Dec 2004 09:55:06 +1100

At 10:54 AM 2/12/2004, [email-masked] wrote:

>Since, ISOC, under current rules, if I understand them correctly, needs to 
>approve BCP's that change IETF processes, it should be easy for the two 
>documents to be approved, and thus put into effect, simultaneously.
>

The usual course of events, as I understand them, would be for the Board of 
ISOC to accept the BCP's defined role for ISOC by resolution. The 
definition of ISOC's role would be defined either by reference to the BCP 
document, or by reference to an extract from that document that just 
specifies ISOC's role. Of course precisely how ISOC chooses implements this 
is beyond he scope of this particular discussion, but I don't believe that 
there is, a priori, a need for multiple documents here.

regards,

    Geoff

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From: Brian E Carpenter <[email-masked]>
Date: Fri, 03 Dec 2004 10:33:19 +0100

> like enough people want to face those issues now.

The termination clause is in section 7 of the -01 draft and seems fine
to me.

I'm not sure about dispute resolution. We surely don't want to specify
applicable jurisdiction or predefine an arbitrator, do we? I'm
inclined to leave it out.

     Brian

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From: Carl Malamud <[email-masked]>
Date: Fri, 3 Dec 2004 08:09:17 -0800 (PST)

> The termination clause is in section 7 of the -01 draft and seems fine

Me to.

> inclined to leave it out.

I'd personally leave it out.  Just doesn't seem necessary to have.

Regards,

Carl