Antitrust Guidelines for IETF Participants
draft-halpern-gendispatch-antitrust-04

Network Working Group                                 J. M. Halpern, Ed.
Internet-Draft                                                  Ericsson
Intended status: Informational                                 B. Biddle
Expires: 27 July 2023                                      Biddle Law PC
                                                                J. Daley
                                                 IETF Administration LLC
                                                         23 January 2023

               Antitrust Guidelines for IETF Participants
                 draft-halpern-gendispatch-antitrust-04

Abstract

   This document provides guidance for IETF participants on compliance
   with antitrust laws and how to reduce antitrust risks in connection
   with IETF activities.

Status of This Memo

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   This Internet-Draft will expire on 27 July 2023.

Copyright Notice

   Copyright (c) 2023 IETF Trust and the persons identified as the
   document authors.  All rights reserved.

   This document is subject to BCP 78 and the IETF Trust's Legal
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Table of Contents

   1.  Introduction  . . . . . . . . . . . . . . . . . . . . . . . .   2
   2.  Background  . . . . . . . . . . . . . . . . . . . . . . . . .   2
     2.1.  A Note About Terminology  . . . . . . . . . . . . . . . .   2
     2.2.  Purpose of Antitrust or Competition law . . . . . . . . .   2
     2.3.  Overlapping Areas of Concern  . . . . . . . . . . . . . .   3
   3.  Existing IETF Antitrust Compliance Strategy . . . . . . . . .   3
   4.  Key Recommendations . . . . . . . . . . . . . . . . . . . . .   4
     4.1.  Avoid 'red flag' Topics . . . . . . . . . . . . . . . . .   4
     4.2.  Use Caution With 'yellow flag' Topics . . . . . . . . . .   5
     4.3.  Obtain Independent Legal Advice . . . . . . . . . . . . .   5
     4.4.  Escalate Antitrust-Related Concerns . . . . . . . . . . .   5
   5.  IANA Considerations . . . . . . . . . . . . . . . . . . . . .   5
   6.  Security Considerations . . . . . . . . . . . . . . . . . . .   6
   7.  Normative References  . . . . . . . . . . . . . . . . . . . .   6
   8.  Informative References  . . . . . . . . . . . . . . . . . . .   7
   Authors' Addresses  . . . . . . . . . . . . . . . . . . . . . . .   7

1.  Introduction

   Standards development frequently requires collaboration between
   competitors.  Cooperation among competitors can spark concerns about
   antitrust law or competition law violations.  This document provides
   guidance for IETF participants about how to reduce antitrust risks in
   connection with IETF activities.

2.  Background

2.1.  A Note About Terminology

   "Antitrust law" and "competition law" are used synonymously in this
   document. “Antitrust” is the word that is used in the US and in
   several other jurisdictions; “competition law” is the terminology
   used in Europe and in many other jurisdictions.  There can be some
   nuanced differences between how different jurisdictions address these
   kinds of legal issues, and sometimes people use the terminology
   differently to highlight these nuances, but here they are being used
   as synonyms.

2.2.  Purpose of Antitrust or Competition law

   The U.S.  Department of Justice says that “the goal of the antitrust
   laws is to protect economic freedom and opportunity by promoting free
   and fair competition in the marketplace.  Competition in a free
   market benefits consumers through lower prices, better quality and
   greater choice.  Competition provides businesses the opportunity to
   compete on price and quality, in an open market and on a level

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   playing field, unhampered by anticompetitive restraints.”
   Fundamentally, antitrust or competition laws are designed to
   facilitate open, fair, robust competition, ultimately to benefit
   consumers.

2.3.  Overlapping Areas of Concern

   There are two overlapping areas of concern the IETF has in connection
   with antitrust compliance:

   *  Most acutely, the IETF must not have anyone who is officially
      representing the IETF, in any capacity, engage in problematic
      antitrust behavior and create liability for the IETF.

   *  Additionally, the IETF must not be a forum where participants
      engage in problematic antitrust behavior, even if direct liability
      for that behavior falls on those participants and not the IETF, to
      avoid reputational harm to the IETF.

3.  Existing IETF Antitrust Compliance Strategy

   Compliance with the BCPs and other relevant policies that document
   the established rules and norms of the IETF facilitates compliance
   with antitrust law, as the IETF structure and processes are designed
   to mitigate antitrust risks.  As a reminder, participants are
   required to comply with the following policies:

   *  The Internet Standards Process as described in BCP 9 [BCP9] ,
      which is designed to "provide a fair, open, and objective basis
      for developing, evaluating, and adopting Internet Standards," and
      provides robust procedural rules, including an appeals process.

   *  The Working Group Guidelines and Procedures described in BCP 25
      [BCP25] , which emphasize requirements for "open and fair
      participation and for thorough consideration of technical
      alternatives," and describe IETF's consensus-based decision-making
      processes.

   *  The IETF framework that participants engage in their individual
      capacity, not as company representatives (see [BCP9] and [TAO]),
      and "use their best engineering judgment to find the best solution
      for the whole Internet, not just the best solution for any
      particular network, technology, vendor, or user," as described in
      BCP 54 [BCP54] .

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   *  The IETF's intellectual property rights policies as set forth in
      BCP 78 [BCP78] and BCP 79 [BCP79] ; these policies are carefully
      designed to "benefit the Internet community and the public at
      large, while respecting the legitimate rights of others."

   *  The established conflict of interest policies, such as the IESG
      Conflict of Interest Policy, the IAB Conflict of Interest Policy
      or the IETF LLC Conflict of Interest Policy, if and when
      applicable.

4.  Key Recommendations

   The most important recommendation is for IETF participants to
   rigorously follow all applicable IETF policies as set out in section
   3 above.

   Additionally it is recommended that IETF participants:

   *  Avoid 'red flag' topics

   *  Use caution with 'yellow flag' topics

   *  Obtain independent legal advice, as appropriate

   *  Escalate antitrust-related concerns

4.1.  Avoid 'red flag' Topics

   Some topics are particularly inappropriate for discussion in a
   standards setting environment where representatives from competitors
   are likely to be present.  These topics include: discussion about
   product pricing or profit margins among potential competitors, the
   details of business relationships between specific vendors and
   customers, details about the supply chains of specific companies,
   discussions about market opportunities for specific companies, or
   employee compensation or benefits among potentially competitive
   employers.  While not all discussions of these topics would
   necessarily be antitrust violations, and recognizing that analysis of
   antitrust considerations will be different for differently-positioned
   participants, prudence suggests that avoiding these specific topics
   in the context of the collaborative IETF process best mitigates
   antitrust risks for the IETF and its participants.

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   Note that antitrust law reaches beyond these topics, however.  For
   example, any behavior that amounts to an agreement to restrain
   marketplace competition, or that facilitates monopolization of
   particular markets, raises potential antitrust risks.  Participants
   must ensure that their conduct does not violate any antitrust laws or
   regulations.

4.2.  Use Caution With 'yellow flag' Topics

   Two topics that can be relevant at times in a standard setting
   context but that can also raise some competition law risks when
   engaged in collaboratively are:

   *  Using detailed market data to evaluate the relative implementation
      costs of two technical alternatives to decide whether one is
      significantly more feasible in the market and thus a better
      candidate for standardization.

   *  Seeking clarifications about IPR disclosures, in a context when
      any such clarifications could be reasonably perceived as entering
      into group negotiations of IPR terms.

   IETF participants who require informal advice on these issues have a
   number of options open to them, including speaking to relevant Area
   Directors, raising the matter with the community on a mailing list,
   or contacting IETF counsel directly.

4.3.  Obtain Independent Legal Advice

   All IETF participants are expected to behave lawfully when engaged in
   IETF activities, including by following applicable antitrust law.
   The IETF does not provide legal advice to participants, and instead
   recommends that participants obtain independent legal advice as
   needed.  IETF participants should consult with their own counsel when
   antitrust or competition law-related questions arise.

4.4.  Escalate Antitrust-Related Concerns

   Participants should report potential antitrust concerns in the
   context of IETF activities through the following channels: IETF Chair
   (chair@ietf.org), the IETF LLC executive director (exec-
   director@ietf.org), the IETF legal counsel (legal@ietf.org), or via
   the IETF LLC whistleblower service.

5.  IANA Considerations

   No values are assigned in this document, no registries are created,
   and there is no action assigned to the IANA by this document.

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6.  Security Considerations

   This document may be considered to document means to avoid risks to
   the IETF and IETF participants related to antitrust.  One may
   consider those to be security considerations.  Other than that, this
   document introduces no known security aspects to the IETF or IETF
   participants.

7.  Normative References

   [BCP9]     Bradner, S., "The Internet Standards Process -- Revision
              3", BCP 9, RFC 2026, October 1996.

              Dusseault, L. and R. Sparks, "Guidance on Interoperation
              and Implementation Reports for Advancement to Draft
              Standard", BCP 9, RFC 5657, September 2009.

              Housley, R., Crocker, D., and E. Burger, "Reducing the
              Standards Track to Two Maturity Levels", BCP 9, RFC 6410,
              October 2011.

              Resnick, P., "Retirement of the "Internet Official
              Protocol Standards" Summary Document", BCP 9, RFC 7100,
              December 2013.

              Kolkman, O., Bradner, S., and S. Turner, "Characterization
              of Proposed Standards", BCP 9, RFC 7127, January 2014.

              Dawkins, S., "Increasing the Number of Area Directors in
              an IETF Area", BCP 9, RFC 7475, March 2015.

              Halpern, J., Ed. and E. Rescorla, Ed., "IETF Stream
              Documents Require IETF Rough Consensus", BCP 9, RFC 8789,
              June 2020.

              <https://www.rfc-editor.org/info/bcp9>

   [BCP25]    Bradner, S., "IETF Working Group Guidelines and
              Procedures", BCP 25, RFC 2418, September 1998.

              Wasserman, M., "Updates to RFC 2418 Regarding the
              Management of IETF Mailing Lists", BCP 25, RFC 3934,
              October 2004.

              Resnick, P. and A. Farrel, "IETF Anti-Harassment
              Procedures", BCP 25, RFC 7776, March 2016.

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              Resnick, P. and A. Farrel, "Update to the IETF Anti-
              Harassment Procedures for the Replacement of the IETF
              Administrative Oversight Committee (IAOC) with the IETF
              Administration LLC", BCP 25, RFC 8716, February 2020.

              <https://www.rfc-editor.org/info/bcp25>

   [BCP54]    Moonesamy, S., Ed., "IETF Guidelines for Conduct", BCP 54,
              RFC 7154, March 2014.

              <https://www.rfc-editor.org/info/bcp54>

   [BCP78]    Bradner, S., Ed. and J. Contreras, Ed., "Rights
              Contributors Provide to the IETF Trust", BCP 78, RFC 5378,
              November 2008.

              <https://www.rfc-editor.org/info/bcp78>

   [BCP79]    Bradner, S. and J. Contreras, "Intellectual Property
              Rights in IETF Technology", BCP 79, RFC 8179, May 2017.

              <https://www.rfc-editor.org/info/bcp79>

8.  Informative References

   [TAO]      "The Tao of the IETF",
              <https://www.ietf.org/about/participate/tao/>.

Authors' Addresses

   Joel M. Halpern (editor)
   Ericsson
   P. O. Box 6049
   Leesburg, VA 20178
   United States of America
   Email: joel.halpern@ericsson.com

   Brad Biddle
   Biddle Law PC
   650 NE Holladay Street, Suite 1600
   Portland, OR 97232
   United States of America
   Email: brad@biddle.law

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   Jay Daley
   IETF Administration LLC
   1000 N. West Street, Suite 1200
   Wilimington, DE 19801
   United States of America
   Email: jay@staff.ietf.org

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