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Date: Sat, 9 Jan 2016 13:30:41 -0500
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To: PHP internals <internals@lists.php.net>
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Subject: Re: [PHP-DEV] [RFC] [Draft] Adopt Code of Conduct
From: brandon@brandonsavage.net (Brandon Savage)

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All,

Having read all of the RFCs proposed to date, as well as the discussions
around this topic, I have some questions that have yet to be answered, and
that I would like to try and understand the answers to.

Some quick background: I may program for a living, but I hold a degree in
political science with an emphasis in law, government and political
systems.

In every judicial system (and that's essentially what we're creating here),
the rights of the accuser are always balanced against the rights of the
accused. Most western (European/American) cultures have a concept of "due
process of law", along with certain rights reserved for the accused like
the right to confront an accuser, the admissibility of evidence, conduct of
the government and prosecutors, and the right to present a defense. In
addition, there's almost always a standard of proof that must be offered
prior to convicting the accused person of the alleged wrongdoing, along
with an automatic presumption of innocence.

Even in a very basic sense, we are asking a small group to sit in judgement
over members of the community and regulate their conduct. This creates a de
facto court. What we call it (mediation team, conflict resolution team,
etc) doesn't take away from the fact that any group that can impose
punishment on others creates some sort of judicial or legal system.

This RFC does have real consequences for real people (imagine explaining
being banned from the PHP project to a prospective employer), and I think
it's worth noting that by applying the "reasonableness test" we've made
improvements. There are some additional questions that are worth
considering that might help improve this RFC. These are in no particular
order.

1. We are asserting that privacy, for the accused AND the accuser, are a
primary goal. Are we then outright rejecting the premise that the accused
has a right to "confront the witnesses against them"?

2. What standard of proof do we want to use for these issues? Legal burdens
of proof range from "reasonable suspicion" to "beyond a reasonable doubt."
The RFC makes no mention of a standard of proof, and this is important,
because the standard we use will impact what kind of evidence is required.
(For more: https://en.wikipedia.org/wiki/Legal_burden_of_proof)

3. What standard are we using to authenticate evidence? Modifying
documents, emails and tweets on the internet is very easy. Screenshots are
not reliable evidence. Charges of fabrication can taint even the most
legitimate process. How can we be sure that neither party engages in this
type of behavior?

4. Is the accused REQUIRED to provide evidence in their defense? In
American criminal courts (I can't speak to elsewhere), it's the obligation
of the prosecution to make a prima facie case AND prove their case beyond a
reasonable doubt. A legitimate strategy for a defendant is to offer NO
evidence, and poke holes in the prosecution's case, resting immediately
after the prosecution does. Is that an option here?

5. In the same thread of the previous question, can silence or refusal to
participate in the process be used against the accused?

6. What provisions exist for managing conflicts of interest? Examples: what
if the accused is on the mediation team? Best friends with someone on the
team? Married to someone on the team? Brother/sister of someone on the
team? Works with someone on the team? Was somehow involved/observed the
original incident in question and is cited as a witness by the accuser?

At the end of the day, I don't think that the concept, or even the text, of
the code of conduct is that controversial. For me, it's the enforcement
mechanism that needs improvement to get my +1.

Brandon

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