Re: [gentoo-dev] [RFC] Splitting developer-oriented and expert user mailing lists

[R0b0t1]

On Wed, Dec 6, 2017 at 7:04 AM, Rich Freeman <rich0@g.o> wrote:
> On Wed, Dec 6, 2017 at 2:22 AM, R0b0t1 <r030t1@×××××.com> wrote:
>> On Tue, Dec 5, 2017 at 4:12 PM, Rich Freeman <rich0@g.o> wrote:
>>>
>>> And what would you do when somebody repeatedly sexually harasses other
>>> members of the community in private after being told to stop, and then
>>> acts as if they're the victim on the public mailing lists?
>>>
>>
>> If you are going to allege misconduct you need to be prepared to prove it.
>>
>
> And this is done - in private.  Nobody is alleging misconduct in
> public, so I don't see why it needs to be proven in public.  Those
> being kicked out are generally told why and are given an opportunity
> to explain themselves, and often they're given an opportunity to
> improve.  Some have later posted publicly saying they don't know why
> they were booted.  With unmoderated lists we can't keep them from
> making false statements like this.  With our current policies we can't
> really contradict them specifically either.
>

You're mincing words: people are publicly alleging (we're talking
about it right now) private misconduct. Actions are now being proposed
(and have already begun to be acted out) based on this private
behavior. It is reasonable that if you expect anyone to believe you,
that you should prove the misconduct actually took place.

> I actually saw Debian take a slightly different tact in a recent
> situation.  It looks like they gave the accused the opportunity to
> decide whether the reasons for the action would be made public or not.
> In that case they chose to make it public, so there was a public
> statement by the project as to what was being done and why.  It
> probably wouldn't hurt to talk to a lawyer but such an approach has
> the advantage that it both preserves the privacy of the accused, while
> also defeating false statements.  If somebody alleges that they're
> innocent but did not give permission for the project to explain what
> actually happened, they can hardly be considered a voice for
> transparency and it would diminish their credibility.  On the other
> hand, if somebody chooses to quietly leave the community there would
> be no publicity around the event.  I'd think it would also help to
> defeat liability for defamation/etc since the statement could be
> presented to the accused for them to accept or reject, and if they
> accepted it for publication that would probably make it hard to argue
> in a court.
>

What really makes this hard to argue in court is the fact that in all
but one circuit libel, slander, and by extension defamation are all
impossible to claim if the statements were truthful. The first circuit
decision is very unpopular, and it seems like people do not expect it
to stand further testing as it was due to exceptional circumstances.

But really, the bigger issue is that lawyers are not magic sages that
can solve all of your problems. Most statements by lawyers are
opinions about how a justice might decide, and they do not know for
sure. In fact, much of practicing law is avoiding confrontation at all
cost, and many issues in the popular eye are almost entirely legal
speculation that has never seen a courtroom!

Consequently, the justification for the actions as has been given is
pathetic: if you actually had people's best interest in mind you would
be forthcoming with the evidence, because you truly believed the
problem is worth solving and believed you should convince other people
that it is worth solving. If you made someone's private actions public
(with consent of one party involved) it would be very hard to prove
that anything was done out of malice, which would be necessary, in the
US, to prove defamation.

Do not give up your freedom to act unless you are forced to.

The one legitimate complaint I could see being entertained is similar
to the ones that are now cropping up against universities and their
Title IX compliance courts: you have no legal training and are not
authorized to punish anyone, so the only thing you should do once you
are notified of misconduct is contact the police. In this sense the
policies you have now are "illegal" (in the vague, nebulous way that
your behavior makes it more likely for another party to have
standing).

> Aside from defamation as a potential issue, there is another reason to
> keep this stuff private.  Somebody might not be a good fit for a big
> community project, but that doesn't mean that there aren't other areas
> of their life where they can be successful.  Publicity over a bad
> event can harm their reputation in ways that go beyond the immediate
> needs of our community.  And there always is the chance that an error
> is being made in kicking them out.  Sure, that isn't a good thing, and
> I believe our processes already minimize this risk, but ultimately the
> harm in not being able to participate on a Gentoo mailing list is not
> a great one.  Why make that harm greater by publicizing things when
> this is not essential to accomplish our goals?  The goal isn't to ruin
> somebody's life - it is to allow other contributors to participate in
> the community in reasonable peace.
>

So you are saying I am not capable of deciding for myself, and you are
one of the only ones qualified to decide for me?

I believe in forgiveness, but actions are not without consequences.
The point where private evidence is being used as justification for
public action is when the line has been crossed.

Respectfully,
     R0b0t1