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Re: Appeal procedure for DAM actions

On 07/01/2019 23:27, Joerg Jaspert wrote:
> Hello everyone,
> One of the things that emerged from the recent discussions around DAM
> actions is that we are missing a way to review or appeal DAM's
> decision.  Currently the only way to do this is running a full-featured
> GR, with all the negative side effects such a process has.
> While a GR is a constitutional right, and the procedure we lay out here
> does NOT take that away, we feel there is a need for a less drastic
> procedure that would allow double-checking of DAM actions without
> escalating into a project-wide dispute.
> With this message we define a way to appeal a DAM action, that balances
> between involving other members in the review, and ensuring that we have
> sufficient independent oversight.
> Although this defines a pretty strict timeline for the procedure to
> avoid a long-running process, we waive the time limit defined in §1 for
> the cases from the last 6 months.
> ------------------------------------------------------------------------
> 1. Appealing DAM decisions
> --------------------------
> Any person who had their Debian membership suspended or revoked by DAM
> may appeal the decision. They must request the appeal within 30 days,
> stating why they disagree with the decision in a mail to DAM. DAM will
> notify the New Members Committee (NMC)[1][2] and Front Desk.
> The original action taken by DAMs remains in force during the appeal.

Happy Australia Day everybody.  Please take a moment to review the
Wikipedia definition[0] of a kangaroo court, many people have privately
commented on the irony of kangaroo courts in this situation.  Various
points stand out and care is needed to avoid the perception that this
type of thing happens in Debian:

"proceedings are often held to give the appearance of a fair and just
trial, even though the verdict was already decided before the trial
actually began"

"A kangaroo court could also develop when the structure and operation of
the forum result in an inferior brand of adjudication. A common example
of this is when institutional disputants ("repeat players") have
excessive and unfair structural advantages over individual disputants
("one-shot players")"

The way that DAM has been making decisions without consulting the
members in question is a "shoot first ask questions later" approach.
Making a decision and asking people to appeal suggests they are "guilty
until proven innocent"

In the case in 2016, the member concerned was given 48 hours to answer
questions.  Most DDs would struggle to respond in that period,
especially if they were on vacation or had other deadlines for their job.

Now DAM appears to have abandoned even that hint of due process and
decided that they don't even need to give that 48 hours.  It is as if
people are being unceremoniously dumped out the back door.

The process needs to be much more reasonable, perhaps 90 days at each
step and not even making a first decision without reasonable time.  The
process for accepting a member generally takes quite some time so it is
contradictory to have this lightning-strike expulsion process.

How can a decision that may unfairly impact somebody's work and
reputation be implemented before the member has exhausted all
opportunities for appeal?

If the reason is due to urgent questions about technical competence, DAM
have another option: they change somebody's status from Uploading to
non-Uploading developer.  The member remains a member in the sense that
they can vote and their reputation is less likely to be jeopardized by a
decision that hasn't been confirmed by a full process.

> 2. DAM statement
> ----------------
> Within 72 hours DAM will provide a statement to the NMC and the appealer
> with their reasoning for the account status change.

Why the NMC?

Why not consider having an elected membership committee?

With the current proposal, DAM can watch the way that NMC evolves over
time and choose to make a decision at a time when they think the current
members of NMC are likely to support the decision.

This is one of those "structural advantages" of a kangaroo court.

> DAM may also send additional material to the NMC only, encrypted to the
> individual members, if they deem it necessary for the case, and if
> presenting this to a wider public might cause issues of confidentiality
> for involved third-parties. The NMC members are expected to avoid
> disclosing this material to anyone else, including the appealer.[3]

The presence of secret evidence is a showstopper here.

Another one of the "excessive and unfair structural advantages over
individual disputants" that typifies a kangaroo court.

If a member goes to a GR, they won't be contending with any secret
evidence because everybody (the member and the rest of the community)
will be working off the same public evidence and the member will be able
to challenge any of it as necessary.

In the current situation, "evidence" that is 100% defamatory has been
sent to antiharassment and DAM or circulated in other communities.  A
process that prevents a member from reviewing such material and
rebutting it is incredibly unfair and also unreliable.

In at least one recent case, it appears DAM did not send any evidence or
justification to the member, they only sent some condescending and
offensive personal insults to the member.

Strategically, for many reasons, it would appear that a member would be
better off going directly to a GR.  If the member makes an appeal, their
appeal is undermined by secret defamatory evidence that they weren't
allowed to see and they lose the appeal, the full community discovers
the appeal was declined, it may be harder to convince the full community
to support them in a subsequent GR.  So it would be strategically better
to just go directly from DAM to GR without first making an appeal to NMC.

This strategic consideration could potentially be mitigated if the fact
the member made an appeal to NMC is kept secret.  But given the way
"private" communications from DAM have been propagated outside the
organization recently, within minutes of a DAM decision, a member would
still be unlikely to trust the appeal process.

> 3. Appealer statement
> ---------------------
> Within a further 72 hours, the appealer has the opportunity to respond
> to the DAM statement with their own statement.

According to our constitution, we are all volunteers.

Short time scales like this are not reasonable.  Most organizations
would take weeks or months to work through such a serious process.

During the new membership process, there are sometimes long pauses in
the exchange, so this 72 hour opportunity for the member to respond to
evidence is contradictory.

Wikipedia suggests[0] "hastily carried-out proceedings" are a symptom of
a kangaroo court.

Members are not salaried so there is no urgency like in a small startup
company trying to fire one person and hire somebody else.  Somebody else
suggested a series of warnings, I'd also suggest having a significant
period, e.g. 2-3 years of review and active attempts at discussion
before any final decision is made.

If membership can just be extinguished in the blink of an eye a few days
before Christmas it trivializes the whole concept of membership and that
trivializes the organization as a whole.  It looks like a teenage rock
band having a fight and breaking up within 15 minutes, not an
organization of professionals.  The tone of that quote from DAM in my
recent blog[6] emphasizes that: "This is not involving anything from the
universal declaration of human rights. We are simply a project of
volunteers which is free to chose its members as it wishes."

In a small group that attitude might be acceptable but in a group of
1,000 people, there will be people who don't talk to each other or can't
stand each other.  That isn't grounds for expulsion or demotion.  It is
a sign that the project is growing, that is all.  If founders of the
project didn't want it to get so big, they never should have offered
membership in the first place.

DAM stated in their email about non-routine actions that the project's
reputation is a factor in their decisions.  This improvised attitude to
the rights of members doesn't live up the reputation of the project.

We have all helped the organization build that great reputation and so
it is particularly unfair that DAM or the DPL can use the project's
reputation against any one of us in the way that they have done in 2018.

> 4. NM Committee review
> ----------------------
> The NMC has 7 days to review the received material and discuss the
> matter in private. They are expected not to solicit further input, as
> this is not an inquiry but a peer review of the DAM decision.

>From that Wikipedia article again: "proceedings are often held to give
the appearance of a fair and just trial, even though the verdict was
already decided before the trial actually began"

> 5. NM-Committee vote
> --------------------
> After 7 days discussion, or earlier if unanimously agreed by the NMC,
> NM-Frontdesk will ask the secretary to conduct a secret, 3-day-long
> vote, with the following options:
> 1. Uphold the decision of the DAMs
> 2. Overturn the decision of the DAMs
> Committee members otherwise involved in a case must abstain.
> DAM members are not allowed to partake in the vote.
> A simple majority decides the vote; in the event of a tie, the decision
> is not overturned.

Why not raise this to 75% or 90% of eligible votes?  These are
extraordinarily serious decisions and if the evidence is only able to
convince barely half the people then the decision will have a toxic
legacy.  It will be perceived as a political decision.

In a jury trial, for example, it is usually necessary for 100% of jurors
to agree.  Many other organizations also require some sort of
super-majority for big decisions like expulsion and constitutional changes.

> Abstained or absent votes are not counted. If more than half of the NMC
> (excluding DAM) abstain or do not vote, the decision is not overturned.
> An independent Developer, usually the project secretary, conducts the
> vote. In the event that the secretary is a partly involved in the case,
> DAMs will work with the DPL to identify a suitable developer.
> 6. Action
> ---------
> If the decision is overturned, the suspension or revocation of the
> account will be turned into a warning. The previous account status will
> be reactived and all changes to it undone at the earliest of the
> involved teams convenience.[5]

Why does it need to be automatically turned into a warning?  It should
just stop there.  Anything that leaves a toxic legacy like this
should be avoided.

> If the decision is upheld, this process, like anything in Debian, does
> not prevent a GR.
> Footnotes:
> [1] The NM-Committee is defined as:
>        - All members of DAM and FrontDesk.
>        - All application manager that are marked as active and         
> processed at least one NM in the last 6 months.
>    There is a mail alias <nm-committee@nm.debian.org> which reaches all
>    members, it is regularly regenerated by FrontDesk.
> [2] At this point, frontdesk will ensure that the NM committee will not
>    be updated until after the case, to avoid a membership change in the
>    middle of an appeal process.
> [3] This hopefully minimizes the risk of disclosing information that was
>    given to DAM in confidence. The appealer is not included as in some
>    situations it may be used to further harass the reporters.
> [5] It involves keyring-maint and DSA, none of which we can or should   
> dictate timelines to. It is expected to be measured in days, not weeks.

0. https://en.wikipedia.org/wiki/Kangaroo_court
6. https://danielpocock.com/debian-human-rights-paradox

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