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Date: Sat, 9 Jan 2016 19:49:22 -0800
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To: Brandon Savage <brandon@brandonsavage.net>
Subject: Re: [PHP-DEV] [RFC] [Draft] Adopt Code of Conduct
From: dz@heroku.com (David Zuelke)

(Thank you for this write-up, Brandon. It's good to hear an opinion from =
someone who's a bit closer to that "field". I'll ignore netiquette and =
top-post because it feels like a good point to pick up from and share my =
general thoughts on this)

Personally, I don't disagree with the idea of having a CoC. I think it =
can be greatly beneficial to a community overall.

Adding the "Reasonable Person" test was an important step. I would like =
to go a step further, because there is this section (emphasis mine):

> Project maintainers have the right and responsibility to remove, edit, =
or reject comments, commits, code, wiki edits, issues, and other =
contributions that are not aligned to this Code of Conduct, or to ban =
temporarily or permanently any contributor for other behaviors that =
****they deem inappropriate, threatening, offensive, or harmful****.

IMO, the emphasized portion should be changed to demand "objectively" as =
a requirement (e.g. "objectively offensive"), to ensure that the =
reasonable person test is applied. We've seen time and again in this =
thread how different people's perspectives are when it comes to what =
constitutes an attack or offense, and how "fluid" the lines are in =
people's subjective perception.

Systems where these things are not well-defined and instead open to =
subjective interpretation have the potential to spiral out of control =
(at varying velocities), and that's my main concern.

As an example, look at the minefield that university campuses in the US =
have become in recent years:

> In a particularly egregious 2008 case, for instance, Indiana =
University=E2=80=93Purdue University at Indianapolis found a white =
student guilty of racial harassment for reading a book titled Notre Dame =
vs. the Klan. The book honored student opposition to the Ku Klux Klan =
when it marched on Notre Dame in 1924. Nonetheless, the picture of a =
Klan rally on the book=E2=80=99s cover offended at least one of the =
student=E2=80=99s co-workers (he was a janitor as well as a student), =
and that was enough for a guilty finding by the university=E2=80=99s =
Affirmative Action Office.


This is from =
http://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-am=
erican-mind/399356/ - I urge everyone to read it, because it's extremely =
relevant to this debate.

Such so-called "emotional reasoning" (e.g. "I am offended by this, =
therefore it must be offensive and have been intended as an offense"), =
is becoming more and more common. Situations like these are already =
happening to members of the community, see e.g. =
https://twitter.com/nateabele/status/684135142915452928 (and like with =
Paul, I often disagree with Nate, but shout-out to him for his input and =
in particular for =
https://gist.github.com/nateabele/8d156730dc428322fca5)

I would like to cite another section from the article above to underline =
this point, just in case readers are not interested right now to read it =
whole first and then return:

> The thin argument =E2=80=9CI=E2=80=99m offended=E2=80=9D becomes an =
unbeatable trump card. This leads to what Jonathan Rauch, a contributing =
editor at this magazine, calls the =E2=80=9Coffendedness sweepstakes,=E2=80=
=9D in which opposing parties use claims of offense as cudgels. In the =
process, the bar for what we consider unacceptable speech is lowered =
further and further.

>=20

> Since 2013, new pressure from the federal government has reinforced =
this trend. Federal antidiscrimination statutes regulate on-campus =
harassment and unequal treatment based on sex, race, religion, and =
national origin. Until recently, the Department of Education=E2=80=99s =
Office for Civil Rights acknowledged that speech must be =E2=80=9Cobjectiv=
ely offensive=E2=80=9D before it could be deemed actionable as sexual =
harassment=E2=80=94it would have to pass the =E2=80=9Creasonable =
person=E2=80=9D test. To be prohibited, the office wrote in 2003, =
allegedly harassing speech would have to go =E2=80=9Cbeyond the mere =
expression of views, words, symbols or thoughts that some person finds =
offensive.=E2=80=9D
>=20
> But in 2013, the Departments of Justice and Education greatly =
broadened the definition of sexual harassment to include verbal conduct =
that is simply =E2=80=9Cunwelcome.=E2=80=9D Out of fear of federal =
investigations, universities are now applying that standard=E2=80=94defini=
ng unwelcome speech as harassment=E2=80=94not just to sex, but to race, =
religion, and veteran status as well. Everyone is supposed to rely upon =
his or her own subjective feelings to decide whether a comment by a =
professor or a fellow student is unwelcome, and therefore grounds for a =
harassment claim. Emotional reasoning is now accepted as evidence.


I fear that as group with (mostly) a programming background (as opposed =
to a legal one), and definitely "armed to the teeth with good =
intentions", we might mess up this crucial aspect of the CoC.

It's become a not-uncommon tendency for people in "modern society" (gah, =
kids these days!) to say "I find this subjectively offensive, therefore =
it must be VERBOTEN", and the threshold for that has gradually been =
creeping lower and lower in recent years; see e.g. =
https://twitter.com/_klausi_/status/683226524175208448

This is even going as far as saying "if you disagree with me/us, you =
deserved to be publicly shamed and smeared", which coincidentally =
happened just yesterday when someone suggested precisely this for anyone =
who disagreed with the CoC under discussion: =
https://twitter.com/drupliconissad/status/685489458934841344

Maybe we can make =
http://observer.com/2015/09/the-real-reason-we-need-to-stop-trying-to-prot=
ect-everyones-feelings/ (also, a really good piece, and a must-read =
related to this debate) mandatory reading for everyone who would like to =
in any way interact with the CoC (as an accuser, a victim, or the "panel =
of judges")? :)

David



> On 09.01.2016, at 10:30, Brandon Savage <brandon@brandonsavage.net> =
wrote:
>=20
> All,
>=20
> 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.
>=20
> 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.
>=20
> 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.
>=20
> 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.
>=20
> 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.
>=20
> 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"?
>=20
> 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)
>=20
> 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?
>=20
> 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?
>=20
> 5. In the same thread of the previous question, can silence or refusal =
to
> participate in the process be used against the accused?
>=20
> 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?
>=20
> 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.
>=20
> Brandon