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Motions

Shortcuts WP:ARM WP:ARBM This page can be used by arbitrators to propose motions not related to any existing case or request. Motions are archived at Misplaced Pages:Arbitration/Index/Motions. Only arbitrators may propose or vote on motions on this page. You may visit WP:ARC or WP:ARCA for potential alternatives. Make a motion (Arbitrators only) You can make comments in the sections called "community discussion" or in some cases only in your own section. Arbitrators or clerks may summarily remove or refactor any comment.

• WP:A/R/M

A working lawyer's interpretation of ArbCom's confidentiality policy

"Misplaced Pages:Arbitration/Policy says that Arbitrators should preserve in appropriate confidence

• the contents of private correspondence sent to the Committee and
• the Committee's internal discussions and deliberations and

the Committee treats as private

• all communications sent to it, or
• sent by a Committee member in the performance of their duties."

As my user name might imply, I am in fact a working attorney. In the past, I have served as general counsel for several privately held corporations. In that previous capacity, I have had numerous occasions to review under applicable American law what constitutes communications and other acts undertaken by an officer or employee of an organization in the performance of their duties. I have also had occasion to write numerous standalone confidentiality agreements and confidentiality clauses included within larger documents, as well as to review and revise the confidentiality agreements and clauses drafted by other lawyers. Several years ago, I even attended a three-hour continuing legal education seminar on the drafting of confidentiality agreements. So, I know a little bit about the topic on which I am going to offer an opinion.

Before someone gets bent out of shape and feels the need to remind me that my professional status has no particular significance on Misplaced Pages, or to accuse of me of being a "wikilawyer," let me acknowledge that I am just another member of the Misplaced Pages community here–albeit one with a slightly different perspective because of my professional education, training and experience.

I have been pondering the most recent ArbCom dust-up regarding Jclemens and Elen of the Roads. From the standpoint of the core reasons for ArbCom's confidentiality policy I had little doubt: to preserve the confidentiality of (1) evidence and suggestions submitted to ArbCom by case parties and other editors, (2) the arbitrators' deliberations regarding cases before the committee, and (3) identifying personal information regarding the real world identities of editors. Now, that I have located the actual language of the ArbCom confidentiality policy, and had an opportunity to read it, I have several interpretative observations.

I have included the actual policy above (the indented parsing and bullet points are mine). While the policy itself is not a model of clear drafting, and would present several problems in enforcing it in a court of law, I nevertheless believe that its intended meaning is clear enough. First, it obligates the committee members to maintain the confidentiality of "private correspondence" sent to the committee. Second, it obligates the committee members to maintain the confidentiality of the committee's "internal discussions and deliberations." Third, it states that the committee will maintain the confidentiality of "all communications sent to it" (arguably, this is completely redundant with the first operative clause). And finally, it states that the committee will maintain the confidentiality of communications sent by a committee member "in the performance of their duties."

The first clause, regarding the "contents of private correspondence sent to the Committee" has no obvious application in the present circumstances. Nor does the third clause, regarding "all communications sent to it." Both of these clauses clearly contemplate correspondence and other communications sent to the committee by others. So, let's focus on the second and fourth clauses that may have application in the present circumstances.

The second clause, regarding the "ommittee's internal discussions and deliberations," could have potential application in the instant matter. The clause distinguishes between the committee's "internal discussions" and its "deliberations." The word "deliberations," given its usual and customary meaning, presumably refers to the committee's decision-making process in arbitration cases and other matters brought to it for decision. The phrase "internal discussions" is both broader and less specific in its meaning. Does it refer to the committee's official business? Almost certainly. Does it refer to birthday greetings sent from one committee member to another? Well, it could . . . and that's the biggest problem with the way the policy is currently written. A reasonable interpretation of the clause, taken as a whole, was that it should be read that the members will maintain the confidentiality of the committee's official "internal discussions and deliberations" undertaken in the course of its business. But, that's not what it says with the required specificity, unfortunately. From the standpoint of a lawyer who has seen confidentiality agreements litigated, the vagueness of this phrase is probably a fatal flaw to its enforcement for any purpose other than official business. Generally, courts will not construe vague language in favor of the drafter nor in favor of greater duties than those specified or can be reasonably inferred by custom and usage.

The fourth clause, regarding communications sent by a committee member "in the performance of their duties," does have potential application in these circumstances, but this would require a very specific and somewhat odd interpretation by ArbCom. Obviously, the email in question was sent by a committee member, but was it sent "in the performance of duties?" Good question. Do ArbCom members believe that "the performance of their duties" includes campaigning for reelection? Warning other committee members that he will oppose the reelection of his fellow members if they make decisions with which he disagrees? I suppose only ArbCom members can answer whether such activities are within the scope of their official duties. If such activities are not within the scope of their official duties, then the fourth clause does not apply.

So, what this all boils down to is this: it's difficult for me, as a lawyer reading and interpreting this policy, to understand how overtly political communications would be within the scope of ArbCom members' duties. Only if we construe the phrase "internal discussions" to extend from everything to the committee's official business to birthday greetings does the second clause apply. I will leave that final interpretation to each of you individually, because the clause in question offers nothing more. Now, you can be your own individual judges and juries. I hope you enjoy the experience. Dirtlawyer1 (talk) 06:41, 29 November 2012 (UTC)

• I agree with your interpretation; the legal side is ambigiguous, and in my biew badly formed and worded. However, it would not really matter if the document had been drafted in Geneva and written in French because Misplaced Pages is a quasi-legal fiefdom and has historically interpreted laws to suit its requirements at he tme. What passes for law and justice in the rest of the civilised world means nothing here. Giano (talk) 08:18, 29 November 2012 (UTC)

Good analysis. When confronted with language like this policy, I ask myself "What blacksmith drafted this?" That aside, taking the words at face value, JClemens should have had no reasonable expectation that his e-mails would or should be treated as private and confidential. The way this is written, the first and third clauses are to be read together, as are the second and fourth. In context, the first clause applies only to private correspondence sent to the Committee by a third party. Any other interpretation renders the second clause superflous. The third clause states, absurdly, that every third party communication to ArbCom is treated as private, making the word "private" in the first clause unnecessary, but that drafting flaw is irrelevant here. JClemens is not a third party, and so the first and third clauses simply does not render his e-mail confidential. The second and fourth clauses also clearly apply only to official correspondence among ArbCom members in the performance of their duties. It is clear from JClemens' e-mail that he voluntarily posted publicly, and from all description the others that have not yet been posted publicly, that his e-mails were totally unrelated to ArbCom's official function. Moreover, his use of the ArbCom private mail list for his electioneering was an improper use of that list for which he has been censured. The crocodile tears being shed over the disclosure of the contents of his communications are being shed in vain. JClemens should have had no reasonable expectation that his e-mails were covered by the confidentiality policy and disclosing their contents to third persons is no violation of that policy. Fladrif (talk) 14:58, 29 November 2012 (UTC)

• ArbCom is not capable of resolving this problem either now or after the election. Almost all of the members of ArbCom lack real world experience or training in anything related to arbitration. You are able to see serious problems with the policy because of your training and experience. ArbCom, despite having leaks from its list on multiple occasions before, never identified this as a problem. This is being treated as a situation that policy didn't anticipate. The policy didn't anticipate it because ArbCom failed. ArbCom can't decide if the leak constituted a breach or not. ArbCom can't settle on whether the policy allows them to do anything or not. ArbCom can't decide on whether the proposed motion on Elen has passed or not. ArbCom is fumbling about in the dark trying to come up with solutions to this, but do not have the ability to do so. If they were to recognize their own incompetence, it would be a major step. You can't solve a problem if you don't admit there is one. I can imagine an appointed committee, populated with people such as yourself who have real world training, tasked with reviewing ArbCom policy and procedures. --Hammersoft (talk) 15:08, 29 November 2012 (UTC)

Hang on - who said you could have a good idea that might even work, when we're not done blundering around in the dark yet? Seriously - that's the best suggestion to date on this whole page. Begoon  16:37, 29 November 2012 (UTC)

Silence! What is all this dreadful noise about?

What a mess the Arbcom has got themselves into. If this was a pack of children, one would say to them “go away; sort yourselves out; be nice, and if anyone comes back crying, you will all go to bed early.” It’s quite clear that JClemens is a divisive element who has caused the creation of playground gangs. One gang (The Holier than Thous) has decided it’s ‘Get Elen day’ and the other gang (The Moderates) is too timid to stand up to the other because Elen has been a bit disloyal by making friends outside of either the chosen gangs - a huge playground crime. Finally, we have the class goody-goodies who never utter a significant word in case they get into trouble. So here we are, the whole school gathered in a circle shouting “Fight, fight, fight” kicking and egging on. The problem is that this is not the playground, it’s a small staff room spat that has descended into chaos and if we had an efficient headmaster, he would fire them all and make them all re-apply for their jobs. Frankly, this is is not good enough and we deserve better. Someone (looks like it’s me) needs to tell Elen not to do it again. Tell Jclemens and his gang to stop being such bullying, pompous prats, and the rest to pull themselves together and stand up for themselves and each other. If not, they will all be expelled from the class and replaced by more sensible children. Giano (talk) 08:18, 29 November 2012 (UTC)

• The problem in part is that the Arbs can't decide on what makes a majority here, 6 or 10. Both are legitimate arguments. We have a failure to anticipate this particular situation when designing policy, thus a lack of clarity. Completely understandable as it is a rare event, but this is not a good place to evoke WP:IAR, or to start yet another fight once the 6th vote is struck. It should be obvious how the community feels about this: split, for both rational and purely emotional reasons. The Arb's rationales themselves are a bit meandering and confusing. If you bit-strip Elen and she wins the election (a very real possibility), you risk starting the session on a sour note indeed. She did make a mistake, or a series of them actually but not fatal mistakes that would have released information the policy is designed to protect. The attempt to find the middle ground by just stripping the bits is in good faith but raises constitutional issues. The election is going to be final decision maker here, not Arb, no matter what they do. So yes, the community does have the final say, as they do with all Arbs eventually. When I said we were rushing here, this is exactly the slug fest I was hoping to avoid, a situation that is dividing the community and doing far more long term damage that what Jclemens or Elen did, combined. Nothing we do is going to be optimal, and obviously we need to retool the policy to add clarity in the future. Our focus for now should be on creating the least amount of collateral damage since realistically, the election will be the final decision due to simple timing of the events. Dennis Brown - 2¢ © Join WER 12:23, 29 November 2012 (UTC)
  • Agree that policy clarity is always a good thing. Disagree that the election addresses it: no voter is required to know, nor are they required to consider the issues addressed here. Alanscottwalker (talk) 12:42, 29 November 2012 (UTC)
    • There is no good solution possible. This forces us to consider practical solutions that cause the least collateral damage rather than seeking justice. Dennis Brown - 2¢ © Join WER 13:32, 29 November 2012 (UTC)

Suggestion for the sake of legal simplicity (and noting that NYB is a "two handed lawyer" to use Truman's analogy): All mail, email and files sent to any Misplaced Pages mailing list or editor are confidential, and may not be disclosed or posted other than by the original author thereof and not containing any reference to any mail, email or files provided by any other party. Which I think covers all possible Wikiwavering. It would not apply to the case at hand, but I trust NYB would agree it is uniform in treatment for all such communications. Collect (talk) 16:13, 29 November 2012 (UTC)

Ridiculous. That would mean I could send hate mail to my least fav editors and they couldn't do anything about it. NE Ent 16:36, 29 November 2012 (UTC)

(edit conflict)So if I sent you a mail, declaring that I had an army of high quality sock accounts, and was about to unleash them in a campaign to civilly push a POV in a particular article, under your proposed policy you would be forbidden from doing anything about it. You would not be permitted to disclose to anyone, not check users, not Arbcom, no one, that I emailed you, or my intentions contained therein? Monty₈₄₅ 16:37, 29 November 2012 (UTC)

(ec)::Right. And frankly, unless the "hate mail" crosses legal limits, that is the right course. If it violates the law, then the law is what you should look to -- not posting it on Misplaced Pages. I suggest you ask NYB whether "posting hate mail" is what one ought to do. Collect (talk) 16:40, 29 November 2012 (UTC)

(edit conflict) Absolutely not. To say that posts to mailing lists most of which is open for subscription, with publicly accessible and searchable archives (, ), duplicated by multiple other websites (, ), as confidential is just highly unrealistic, impractical, and a case of trying to throw out the baby with the bath water. -- KTC (talk) 16:39, 29 November 2012 (UTC)