Lars,

For clarity, I was not referring to ICANN seeking an opinion from the CA AG.  Rather I am referring to the legal guidance that ICANN received from legal counsel which forms the basis of its view on the risks in volved I conducting a draw and/or charging fees for participating in the draw. This is not just something that I have requested but that others have also repeatedly requested.

Best regards,

Marc H. Trachtenberg
Shareholder

Chair, Internet, Domain Name, e-Commerce and Social Media Practice
Greenberg Traurig, LLP
77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
T +1 312.456.1020

M +1 773.677.3305
trac@gtlaw.com | www.gtlaw.com  |  View GT Biography

From: Lars Hoffmann <lars.hoffmann@icann.org>
Sent: Tuesday, January 14, 2025 5:13 AM
To: Trachtenberg, Marc H. (Shld-Chi-IP-Tech) <trachtenbergm@gtlaw.com>; subpro-irt@icann.org
Subject: Re: [Ext] RE: Application Queuing

Hi Marc,

Thank you for reaching out on-list.  As outlined below, we have considered your request to seek an opinion from the California AG and due to the reason shared below we do not believe this to be a prudent path forward at this stage. As a reminder you made this request in December 2024, so I believe the answer has been timely.

As for the request to assess whether the raffle can be replaced by a randomized draw – which was made by the IRT in February 2024 (see link to the recording below), we did consider legal risks and proposed an alternative to the IRT in June 2024 that would not require a raffle, nor a participation fee. We believe that the option presented aligned with our approach to risk for the next round and with implementation guidance 19.2. However, the IRT, in light of Recommendation 19.1 did not support this approach and supported explicitly a repeat of the 2012 process, per recommendation 19.1.

Therefore, I do not believe that there are any outstanding requests. In addition, I believe that the implementation as proposed aligns with the recommendation 19.1 in the Final Report. As a reminder, the IRT role is to ensure that the implementation aligns with the wording and intent of the approved recommendation, which, I believe, the proposed language does. If you or others disagree, may I kindly ask to elaborate why that is the case in your view.

Many thanks and best wishes,

Lars

From: "trachtenbergm@gtlaw.com" <trachtenbergm@gtlaw.com>
Date: Monday, 13 January 2025 at 21:39
To: Lars Hoffmann <lars.hoffmann@icann.org>, "subpro-irt@icann.org" <subpro-irt@icann.org>
Subject: [Ext] RE: Application Queuing

Lars,

Where is the legal opinion/guidance provided to ICANN that members of the IR have been requesting for months.  How can we make a decision on this without seeing such guidance?

Best regards,

Marc H. Trachtenberg
Shareholder

Chair, Internet, Domain Name, e-Commerce and Social Media Practice
Greenberg Traurig, LLP
77 West Wacker Drive | Suite 3100 | Chicago, IL 60601
T +1 312.456.1020

M +1 773.677.3305
trac@gtlaw.com | www.gtlaw.com [gtlaw.com]  |  View GT Biography [gtlaw.com]

From: Lars Hoffmann via SubPro-IRT <subpro-irt@icann.org>
Sent: Monday, January 13, 2025 2:06 PM
To: Ariel Liang via SubPro-IRT <subpro-irt@icann.org>
Subject: [SubPro-IRT] Application Queuing

*EXTERNAL TO GT*

Dear all,

Tomorrow’s IRT call will largely focus on RVCs, but I would like to kick the call off by talking about the prioritization draw. (note: the call will start at 12:30 UTC tomorrow; 30min earlier than originally scheduled; a reminder went out earlier today).

Following the IRT’s discussion in December, staff made enquiries and held a number of meeting and we would like to propose the implementation path outlined in December and would also like to take it to public comment. Below, I summarized the issue, the background, the proposed implementation path, and the rationale for said path. I would like to address this during tomorrow’s call and field any questions.

Thank you and best wishes,

Lars

PS: the information below is also attached as a PDF.

Application Queuing - Path Forward.

Issue

• How to determine the priority of applications during the next round of ICANN’s new gTLD program. In other words, how to implement recommendation 19.1 and implementation guidance 19.2 from the Final Report. 

Background

• Consistent with Recommendation 19.1, in February 2024, ICANN org proposed to implement the prioritization draw inline with the approach that occurred in 2012, with the addition of some logistical/operational improvements. The IRT members participating in the call did not support a repeat of the prioritization draw and instead asked ICANN org to explore ways to avoid the need for a draw and to randomize the prioritization process. 
• In June 2024, ICANN org proposed to forgo the draw and, based on SubPro Final Report implementation Guidance 19.2, use an alternative method to determine processing priority. The approach was intended to address the risks associated with the relevant anti-lottery regulations while efficiently assigning priority processing numbers consistent with the policy recommendation.
• During the June meeting, IRT members participating in the call then insisted that, based on recommendation 19.1, ICANN had to repeat the draw from 2012.
• In December 2024, ICANN org presented a revised version of the process originally presented during step 2 above, which included a live draw, broadcast virtually but without a public, in person event, as was the case in 2012. See google doc: https://docs.google.com/document/d/1T5Gap0fzeOTWNUpBK_Bu_Xksd7sw6-R6MhLDKhDSsCQ/edit?tab=t.0#heading=h.asvp60xyqoox .
• During the same December 2024 call, some IRT members then asked to change the nature of the draw, from a raffle to a randomized draw, forgoing the raffle fee, and thereby possibly avoiding any risks that the application fee could be regarded as the raffle-entry fee. IRT members also asked ICANN to obtain an opinion from the California AG on the risks of alternative ways to determine priority.  

Implementation Path

• ICANN will implement the draw as presented to the IRT in December 2024, based on recommendation 19.1. ICANN remains open to explore alternatives to the draw, as laid out in June 2024, however, due to the timeline, such a decision needs to be made by the IRT no later than 8 February 2025. 

Rationale

• The proposed approach aligns with the wording and intent of recommendation 19.1. The PDP WG discussed this issue and did not recommend any fundamental changes to the 2012 process. ICANN org has already provided an alternative prioritization method to the IRT (aligning with implementation guidance 19.2) that would not rely on a raffle/draw but that option was not acceptable to the IRT. 
• One of the largest cost factors of the 2012 round was risk mitigation. Therefore, ICANN has taken the approach to minimize risks that could lead to increases in costs (ultimately born by applicants) and/or may impact the program’s timeline.  ICANN org believes that a conservative approach to risk when it comes to the prioritization is important so not to place the program, or ICANN more generally, at risk of running an illegal lottery, e.g.:

• The application fee could be regarded as the raffle fee and thus ICANN may have to donate 90% of the application fee. 
• Someone might bring a claim that the prioritization draw did not comply with California Penal Code 320.5.

• We considered the request to ask for an opinion from California’s AG. Note that the California AG is statutorily limited to offering opinions to certain public officials, and is prohibited from offering opinions to private citizens like ICANN. The California AG takes the position that, under its statutory authority to issue opinions, it “may give opinions only to these specified public officials, and not to private citizens or to public officials who are not listed in the statute.”  Cal. Att’y Gen., Legal Opinions of the Attorney General – Opinion Unit, https://oag.ca.gov/opinions [oag.ca.gov]; see Cal. Gov’t Code § 12519 (listing specific public officials to whom “[t]he Attorney General shall give the Attorney General’s opinion”).

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