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IETF Administration LLC Statement on Competition Law Issues
- Jason LivingoodIETF Administration LLC Board Chair
28 Jul 2020
The IETF Administration LLC (IETF LLC) has discussed the issue of competition law several times since we formed and is aware it was the topic of a BoF a few years ago. As a result we felt it was a good time to release this statement.
Standards setting activities often require cooperation among parties who may be competitors in a particular market. Antitrust law (U.S. terminology) or competition law (terminology used in most other countries, and adopted here) generally views cooperation among competitors with suspicion, driven by a concern that collaboration can inhibit robust competition and ultimately hurt consumers. Competition law regulators recognize that standards can promote competition and benefit consumers, however. The tension between achieving the pro-competitive, pro-consumer effects of standardization without enabling anti-competitive behavior that ultimately hurts consumers is a longstanding and difficult challenge in the standardization community.
Standards setting organizations (SSOs) address this tension in a variety of ways. Nearly all SSOs adopt rules that are designed to ensure that standards development processes are fair and that participants can’t use these processes to achieve illegitimate ends. Some also adopt formal competition law policies. The substance of these policies varies widely: some are lengthy explanations of competition law generally; some offer a detailed list of "dos and don’ts" that try to identify well-understood safe behavior and avoid any uncertainties; some simply convey that the SSO policy is to comply with applicable law. Some SSOs require a recitation of a competition law compliance statement in advance of every meeting — although the content of these statements varies among different SSOs. Some provide regular training about competition law matters to their participants.
IETF processes and procedures are particularly well-suited to mitigate competition law risks. IETF participation is free and open to all interested individuals. Participants engage in their individual capacity, not as company representatives. A wide range of perspectives is represented, reflecting interests from multiple industry sectors, academia, government and non-governmental organizations (NGOs), from around the globe. IETF procedural rules, which include robust appeal options, are well-documented in public materials, and rigorously followed. IETF activities are conducted with extreme transparency, in public forums. Decision-making requires achieving broad consensus via these public processes. IETF’s disclosure-focused intellectual property rights policies carefully and transparently balance the interests of standards contributors and standards adopters. Fundamentally, “IETF participants 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.”[RFC 7154]
IETF reorganized its administrative leadership in 2018, organizing under the framework of IETF Administration LLC. A key component of the IETF LLC mission is to ensure compliance with applicable laws, including competition laws. IETF LLC requires such compliance in its Code of Conduct. IETF legal counsel regularly trains organization leadership on competition law matters, and IETF counsel and the IETF LLC Executive Director routinely monitor and discuss organization activities. All of this compliance work builds upon a longstanding culture of compliance within IETF. Many IETF participants have deep standards development experience and a sophisticated understanding of standards-related legal issues. Participants are quick to raise concerns via IETF’s established mailing lists and other processes designed for escalating and resolving legal matters.
The IETF has periodically considered whether additional documentation related to competition law compliance would be useful. In 2012, for example, an Antitrust Policy BOF addressed this question. One conclusion from these efforts was that some actions taken by other SSOs — such as the development of a summary of competition law, or a precise set of bright line ‘dos and don’ts,’ or a brief recital of certain antitrust principles in advance of every meeting--are not a good fit for the IETF. Summaries oversimplify, and grow outdated. Bright line dos/don’ts miss important nuance. Mechanical recitals become ‘white noise.’ The conclusion of the 2012 BOF was instead that educational materials should be made available to the IETF community, and a training presentation prepared for the IETF by the then-current counsel for IETF (a leading scholar on standards law), has been available since that time.
The IETF’s approach to competition law is straightforward. Most fundamentally, the organizational structure and associated processes of the IETF are carefully structured to minimize competition law risks and maximize the public benefit of IETF standards. Additionally, IETF LLC is focused on legal compliance as a critical element of its mission, building on a longstanding culture of compliance in the IETF. Our sophisticated body of participants raise compliance concerns via well-established and well-known channels. All participants in IETF activities are expected to abide by applicable law.