Policy-Discussion

[Ian G <iang AT cacert.org>]

On 27/03/2010 12:16, Mark Lipscombe wrote:
> On 3/27/2010 12:04 PM, Daniel Black wrote:
> > right this is important. However arbitrators aren't a legal entitiy
> > only the
> > board as a presentative of the CAcert Inc is.
> >
> > Therefore I suggest that the board is the respondent to any legal
> > authority.
>
> I'm not sure it's possible or even desirable to do that.
>
> Our organisation is entirely volunteer and spread out across the world.
> Legal process could, in theory, be served on any random CAcert community
> member for something that they may have knowledge of or access to.
>
> Every person is a legal entity, just the same way that the association
> is. They can sue, be sued, and be legally compelled to produce things
> that they have access to.
>
> Usual practice when looking for someone to name on a subpoena is to pick
> people that are in the same jurisdiction as you, as it makes it easier
> to compel responsiveness. This could mean that someone who is under the
> Security Policy could be compelled personally simply because of
> jurisdictional convenience.

Right, this is the worry.


> We cannot dictate through our policies who must respond to a legal
> process. Only the body that originated that process or some body that
> oversees it (like a court) can do that. The person subpoenaed would be
> ultimately responsible for compliance or otherwise, but by involving the
> arbitrator the goal is that any action is documented and conducted as
> much in accordance with our policies as possible.


Yes.  And, by positively removing the right of persons to respond, the 
person is much better protected.  This is fairly normal of course, as 
the right normally travels up to "officers" and "board" and sideways to 
"corporate counsel".  What is novel is we've placed the right over to a 
separate body called "arbitrators."


> One amendment to the policy that I would very much support is a
> requirement that each person in the chain in a situation like this (the
> served party, the arbitrator, etc) should have a positive obligation to
> inform the board the moment they become aware.

This could be added.  I like that.  Something like:

"All external inquiries of security import are filed as disputes and 
placed before the Arbitrator under DRP.  Board and security officers 
must be notified."

> The reason for this is that the board is the group of people who have
> the best chance of mounting or assisting in any necessary legal challenge.


Yes, this was envisaged in approving the DRP.  The thing about external 
legal enquiries or demands is that the Arbitrator may need the 
assistance of legal help who is adept in the law of concern.  The Board 
is the group best able to find and pay for that help.



iang

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