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EPIC Alert 11.07 [2004] EPICAlert 7


Volume 11.07 April 8, 2004

Published by the Electronic Privacy Information Center (EPIC)
Washington, D.C.

Table of Contents

[1] Homeland Security Dept. Expands Visitor Tracking System
[2] European Parliament Slams EU-US Agreement on Passenger Data
[3] EPIC Comments on Short Notices, Spam, Biometrics
[4] Canadian Court OKs Peer-to-Peer Sharing
[5] Bill Criminalizing Inaccurate Domain Info Advances In House
[6] News in Brief
[7] EPIC Bookstore: Overruling Democracy
[8] Upcoming Conferences and Events

[1] Homeland Security Dept. Expands Visitor Tracking System

The Department of Homeland Security has announced that it willfingerprint and photograph travelers entering the United Statesthrough the Visa Waiver Program beginning September 30, 2004. Theannouncement marks an expansion of the United States Visitor andImmigrant Status Indicator Technology (US-VISIT), a massivegovernment-wide program that tracks the entry and exit of visitors tothe United States. The expansion will affect an estimated 13 millioncitizens from 27 nations -- including Japan, Australia, and manyEuropean countries -- who until now have been permitted to visit theUnited States for up to 90 days without a visa.

US-VISIT uses more than twenty existing government information systemsto collect biographic and biometric information about visitors to theUnited States, as well as control the pre-entry, entry, status, andexit of those travelers. Since US-VISIT's launch in January,
non-immigrant visa holders have been subject to photographing andfingerprinting, but other travelers, such as those entering the UnitedStates through the Visa Waiver Program and many Mexican and Canadianvisitors, have been exempted. The system has been implementedunilaterally and without regard for international privacy standardsthat bear upon the the United States' collection and use of personalinformation on non-U.S. citizens. The federal Privacy Act protectsonly the records of a U.S. citizen or permanent resident.

US-VISIT has already provoked indignation from other countries. InJanuary, a Brazilian judge rebuked the United States for presuming toimpose fingerprinting and photographing requirements on the rest ofthe world, and ordered that American citizens entering Brazil undergothe same procedures. Last month, China's Ministry of Foreign Affairsdeclared that the United States' fingerprinting of Chinese visitors isdiscriminatory and violates basic human rights of China's citizens.

EPIC's comments in response to the Department of Homeland Security'sannounced implementation of US-VISIT:

EPIC's amicus brief in Hiibel v. Sixth Judicial District Court ofNevada, discussing US-VISIT:

For more information about US-VISIT, see EPIC's US-VISIT Page:

[2] European Parliament Slams EU-US Agreement on Passenger Data

The European Parliament has adopted a resolution criticizing the draftEU-U.S. agreement on the disclosure of passenger name records to theU.S. In calling for the withdrawal of the agreement, ParliamentMembers have urged the European Commission, the executive body of theEU, to come up with a new international agreement that offers genuineprivacy guarantees for air passengers. Pending conclusion of this newagreement, the EP's resolution calls upon European countriesimmediately to comply with European and domestic data protection laws.

The Parliament may also bring an action before the European Court ofJustice to determine whether the passenger record agreement violatesEuropean privacy laws. This would happen if the Commission approvedthe agreement without taking the Parliament's opinion into account.
The Court might be asked to consider whether the agreement upholds theright to privacy as set out in the European Convention on HumanRights. The Court would also have to determine whether the agreementshould be submitted to the Parliament for a binding, rather thanconsultative, vote.

A Parliamentary committee has rejected a proposal that the Spanishgovernment put forward that would require airlines operating withinEurope to provide passenger data to governments in the EU country ofarrival. The Parliament will vote on the proposal later this month.

For more information, see EPIC's EU/U.S. Passenger Data DisclosurePage:

[3] EPIC Comments on Short Notices, Spam, Biometrics

EPIC filed comments in three areas where federal agencies areconsidering policies relevant to the protection of privacy. In thefirst, EPIC filed comments with the Department of the Treasury inopposition to adoption of biometric identifiers to combat identitytheft. The EPIC comments noted that identity theft is exacerbated bylax credit grantors, and noted many examples where credit was issuedto individuals who provided obviously incorrect personal informationand to instances where credit card companies open accounts tohousehold pets. EPIC commented that less invasive alternatives, suchas requiring credit grantors to exercise more caution or assumeliability for victims' total losses for identity theft, would be moreeffective than widespread deployment of biometric systems.

In comments to the Federal Trade Commission, EPIC supported thecreation of a Do Not E-mail Registry to prevent spam. This registryshould support enrollment at the domain-level, so that individuals canenjoy whatever benefit it confers without revealing actual e-mailaddresses. EPIC also recounted anti-spam principles endorsed by acoalition of privacy groups, which urged regulators to adopt a cleardefinition of spam as unsolicited, bulk, commercial email; toestablish opt-in protections, to establish private rights of actionfor individuals; to enable technical solutions for spam; to supportinternational anti-spam cooperation; and to oppose preemption of stateefforts to curb spam. The comments will be considered by the FTC asthe agency drafts a report to Congress with recommendations on whetherto create an anti-spam registry.

Finally, in comments to the agencies that administer financialservices privacy standards, EPIC supported the creation of shortprivacy notices. Such notices, if designed properly, will assistindividuals in understanding their rights and opt-out methods. TheEPIC comments supported the creation of notices that start with a"call to action," an unambiguous statement that the individual musttake affirmative action in order to protect their financial privacy.
EPIC also commented that a checkbox format for the notices would befavorable, as that would allow individuals to score or compare privacypolicies across different companies.

EPIC Comments on Biometrics and Identity Theft:

EPIC Comments on the Do Not E-mail Spam Registry:

EPIC Comments on Short Financial Privacy Notices:

[4] Canadian Court OKs Peer-to-Peer Sharing

In a landmark decision, a Canadian judge has ruled that sharing musicthrough a peer-to-peer service over the Internet is legal underCanadian copyright law. The case arose in February when the CanadianRecording Industry Association requested that the court order severalInternet service providers to turn over the identities of 29 "John andJane Doe" subscribers accused of copyright infringement for makingsongs available for download. Former EPIC law clerks Alex Cameron andJason Young provided support for the Does on behalf of the CanadianInternet Policy and Public Interest Clinic, which was grantedintervenor status in the case along with Electronic Frontier Canada.

In a 28-page opinion, Justice Konrad von Finckenstein determined thatthe recording association did not present legally adequate proof ofcopyright infringement by any of the 29 Does, and failed to show acausal link between the alleged file sharers' usernames and specificInternet Protocol addresses. Given the lack of evidence, Justice vonFinckenstein concluded, it would be "irresponsible" to order thedisclosure of the Does' identities.

Furthermore, Justice von Finckenstein found no proof that the filesharers had actually distributed music files: "The mere fact ofplacing a copy on a shared directory in a computer where that copy canbe accessed via a P2P service does not amount to distribution. Beforeit constitutes distribution, there must be a positive act by the ownerof the shared directory, such as sending out the copies or advertisingthat they are available for copying." He further explained, "I cannotsee a real difference between a library that places a photocopymachine in a room full of copyrighted material and a computer userthat places a personal copy on a shared directory linked to a P2Pservice."

In the United States, the Recording Industry Association of Americahas filed hundreds of lawsuits against Internet users who share musicover the Internet. In December, the United States Court of Appealsfor the DC Circuit ruled against the recording industry's attempts tocompel Verizon to identify its subscribers.

The decision in BMG Canada v. John Doe is available at:

Canadian Internet Policy and Public Interest Clinic:

For more information about file sharing litigation in the UnitedStates, see EPIC's Verizon v. RIAA Page:

[5] Bill Criminalizing Inaccurate Domain Info Advances In House

The House Judiciary Committee is poised to consider H.R. 3754, theFraudulent Online Identity Sanctions Act. This bill would make it acrime to provide inaccurate information to a domain name registry ifthe web site is found to infringe on a copyright. Introduced inFebruary by Representatives Lamar Smith and Howard Berman, the billwas voted out of the Subcommittee and now awaits full JudiciaryCommittee consideration.

This is the most recent effort in a long line of legislativeinitiatives by the House Judiciary to criminalize or stiffen penaltiesfor activity deemed to be a threat to copyright ownership. TheFraudulent Online Identity Sanctions Act would make the provision of"material and misleading false contact information to a domain nameregistrar, domain name registry, or other domain name registrationauthority" a new federal crime, punishable by up to seven years infederal prison.

The WHOIS database is a public directory available and searchableonline that is comprised of such personal information as name,
address, and phone numbers of the domain registrant. Originallyconstructed to enable contact of site administrators for technicalpurposes, the WHOIS database is now heavily used by intellectualproperty lawyers and law enforcement to track down domain nameholders. The Subcommittee held three hearings between 2001 and 2003on the issue of accuracy of the WHOIS database, taking testimony fromthe industry and law enforcement. However, no privacy rightsadvocates were allowed the opportunity to provide a perspective onthis issue. In the most recent hearing on February 4, 2004, theCommittee heard from only intellectual property lawyers and trademarkorganization representatives.

Privacy experts warn that the availability of personal information inWHOIS makes registrants vulnerable to those interested in spamming,
political reprisals, acts of identity theft, and even stalking. Italso has a "chilling affect" on the free speech rights of registrantswishing to speak out about human rights concerns, but may fear someform of punishment. Many people protect themselves by registering fordomain names with inaccurate data.

The Internet Corporation for Assigned Names and Numbers (ICANN), theorganization that administers the Internet and currently hasjurisdiction over WHOIS policies, has established three task forces toanalyze and make recommendations addressing the accessibility ofinformation, the extent of information required, and accuracy theWHOIS data. At a recent ICANN meeting, a representative from theEuropean Commission provided an international legal perspective on theWHOIS issue. He suggested that accuracy requirements for WHOISdatabase, as a public directory of personal information may violateinternational data protection laws. There is growing recognition thatanonymous entries are a right of the registrant.

The text of H.R. 3754, the Fraudulent Online Identity Sanctions Act:

Article 29 Working Paper on WHOIS:
For more information about the WHOIS database, see EPIC's WHOIS Page:

[6] News in Brief

The U.S. Supreme Court ruled 9-0 that the government could withholdautopsy photographs under the Freedom of Information Act to protectthe privacy of a decedent's loved ones from further inquiry into thedeath. The case, National Archives & Records Administration v.
Favish, arose when Allan Favish requested and was denied access to thecrime scene photographs of Vince Foster, former deputy counsel underPresident Clinton, who was found dead in a public park. Favishdoubted five separate government investigations that had concludedthat Foster's death had been a suicide and sought the photographs tosubstantiate his suspicions. Through his suit, Favish gained accessto some, but not all, of the photographs. The Court accepted the caseto decide whether the government had to release the most graphic ofthe photographs, the photographs most important to Favish. The Courtconcluded that the personal privacy exemption under the Freedom ofInformation Act protected Foster's family's privacy and that theseprivacy interests outweigh the public interest in disclosure of thecrime scene photographs absent proof put forth by a requester "thatwould warrant a belief by a reasonable person that the allegedGovernment impropriety might have occurred." Justice Kennedy wrotethe opinion for the Court.

The opinion in National Archives & Records Administration v. Favish isavailable at:

For more information about the Freedom of Information Act, see EPIC'sFOIA Gallery:

EPIC and a coalition of 27 consumer and privacy groups have calledupon Google to suspend its plans to deploy Gmail, a webmail systemthat will scan users' communications in order to targetadvertisements. Targeting advertisements based on individuals'
discussions is an unprecedented invasion into the privacy ofcommunications. Furthermore, the system retains communications for anextended period of time, causing users to have less privacy protectionin their communications because e-mail stored over 180 days issubjected to lower protections under wiretapping laws.

Coalition Letter Urging Suspension of Gmail:

EPIC and a coalition of civil liberties organizations from a widerange of countries have sent a letter to the International CivilAviation Organization regarding its plans to include biometricidentifiers such as fingerprints and facial scans on all newly issuedelectronic passports. ICAO met recently in Cairo to move forward onthe implementation of international standards that will require theuse of biometrics and radio frequency identification technology in allfuture passports. The organization is working quickly with littlepublic outreach or consultation with privacy experts. The letter,
organized by Privacy International, was sent to ICAO to provide suchexpertise. The letter states that the biometric standard being adoptedis "fundamentally flawed" and will result in a substantial number ofpassengers being falsely identified as potential terrorists or wronglyaccused of holding fraudulent passports. The letter warns this planwill actually lead to the first truly global database of biometricinformation. Based on projections from current passport and travelstatistics, biometric details of more than a billion people will beelectronically stored by 2015. The groups believe ICAO could create"unprecedented" security threats due to potential access by terroristsand organized crime.

Read the letter to ICAO:

For more information on identification requirements for travel, seeEPIC's Air Travel Privacy Page:

For more information on biometric identification, see EPIC'sBiometrics Page:

In the latest development in the Department of Justice's efforts toobtain abortion records, the United States Court of Appeals for theSeventh Circuit has rejected the agency's demand for abortion recordsfrom Northwestern Memorial Hospital in Chicago, explaining thedisclosure of the records would violate the privacy of women who hadabortions there. The Justice Department is seeking the records aspart of its defense in a lawsuit that challenges the constitutionalityof the Partial Birth Abortion Ban Act. Federal courts in Manhattan,
San Francisco, and Nebraska are currently considering challenges tothe constitutionality of the law.

For more information about the Justice Department's efforts to obtainmedical records, see EPIC's Medical Privacy Page:

The Consumer Federation of California has launched a series of mockadvertisements highlighting the information sharing practices offinancial services companies. The mock advertisements are part of acampaign that the organization is running to raise awareness ofprivacy problems, and to communicate the public's dissatisfaction withweak financial privacy laws.

Consumer Federation of California's "Privacy Revolt" Ads:

PC Magazine has named EPIC's web site one of its 100 Classics, or "thetop sites on the Web," in the category of Current Events and News YouCan Use. PC Magazine took special note of a graphic on EPIC's site:
"Taking a shot at the Department of Homeland Security, EPIC spoofs thecolor-coded terror threat scale by recasting it as a 'Privacy ThreatIndex.'"

Top 100 Classics, PC Magazine:,1759,1555399,00.asp

[7] EPIC Bookstore: Overruling Democracy

Overruling Democracy: The Supreme Court vs. the American People, byJamin B. Raskin (Routledge 2003).
After the 2000 presidential election few would think that we wouldneed a book to understand how the presidential election was decided.
However, according to Jamin B. Raskin, the historic and unprecedentedruling, which decided the outcome of that year's presidentialelection, was not an isolated case. The Supreme Court left onecritical question in doubt: "do we as citizens of the United Stateshave the right to vote for the President and Vice President? "
According to Raskin's book, Overruling Democracy, The Supreme Courtvs. The American People, the majority of the Supreme Court does notthink that right belongs to us.

In reading this book some may be put off by the liberal perspective,
but read on: what it contains is too important to dismiss. It may bea surprise to learn the case law created by prior Supreme Courtdecisions hinted at a disturbing trend regarding the majority view ofconstitutional voting rights conferred to citizens, long before theyever heard the arguments posed by Bush vs. Gore. Democracy -- atleast the version of democracy envisioned by most citizens of theUnited States -- includes a few basics, which include the right tovote, free speech, and freedom of religion, just to name a few. Overthe course of American history we have faced challenges to these basicfreedoms and the people of this nation have been up to the task ofdefending their constitutional perspective of American democracy. Atthe turn of the last century it was the "Good Government Leagues" andtheir grassroots efforts to reform local and state government byremoving patronage and ending machine politics that won the day. Thoseefforts started on the local and state level, then quickly found theirway into federal laws that protect civil servants from patronagepressures and insured unbiased access to public services provided toour nation's citizens.

Jamin Raskin's call for a new democratic political reform movement maybe right on time, considering the debate swirling on the adoption ofnew electronic voting technology, corporate influence on media, andthreatened changes in campaign free speech rules by the FederalElection Commission (which may impede or mute the rights of thirdparties and activists to be heard) makes this election seasoncontroversial. Is it time to reinvigorate and reassert the power ofthe people to set the course of this nation's democratic institutionsand seriously consider Professor Raskin's suggestion that we codify byConstitutional amendment the right of citizens to vote for thePresident and Vice President of the United States?

Citizen-inspired movements of the past were never about power for itsown sake, but rather the ability of citizens to control the processfor electing representatives to fill positions of public office andmaking that representation accountable to the people they serve. Iwould call this the "We the people" clause of our nation'sConstitution that allows popular movements designed to correct thecourse of government and the institutions, when they stray away frompopular rule. This is the only way our nation stays the course ofdemocracy that allows popular elected government to thrive in theUnited States. There are no rules of American self-government thatsay just because the Supreme Court, Congress and the Executivebranches of our government think that life in the United States shouldbe a certain way, that the people cannot let them know that they arewrong.

Three cheers for Jamin Raskin and let the work to reclaim our nation'sdemocracy already begun by many activist and grassroots organizationscontinue.

-- Lillie Coney

EPIC Publications:

"The Privacy Law Sourcebook 2003: United States Law, InternationalLaw, and Recent Developments," Marc Rotenberg, editor (EPIC 2003).
Price: $40.

The "Physicians Desk Reference of the privacy world." An invaluableresource for students, attorneys, researchers and journalists who needan up-to-date collection of U.S. and International privacy law, aswell as a comprehensive listing of privacy resources.

"FOIA 2002: Litigation Under the Federal Open Government Laws," HarryHammitt, David Sobel and Mark Zaid, editors (EPIC 2002). Price: $40.

This is the standard reference work covering all aspects of theFreedom of Information Act, the Privacy Act, the Government in theSunshine Act, and the Federal Advisory Committee Act. The 21stedition fully updates the manual that lawyers, journalists andresearchers have relied on for more than 25 years. For those wholitigate open government cases (or need to learn how to litigatethem), this is an essential reference manual.

"Privacy & Human Rights 2003: An International Survey of Privacy Lawsand Developments" (EPIC 2002). Price: $35.

This survey, by EPIC and Privacy International, reviews the state ofprivacy in over fifty-five countries around the world. The surveyexamines a wide range of privacy issues including data protection,
passenger profiling, genetic databases, video surveillance, ID systemsand freedom of information laws.

"Filters and Freedom 2.0: Free Speech Perspectives on Internet ContentControls" (EPIC 2001). Price: $20.

A collection of essays, studies, and critiques of Internet contentfiltering. These papers are instrumental in explaining why filteringthreatens free expression.

"The Consumer Law Sourcebook 2000: Electronic Commerce and the GlobalEconomy," Sarah Andrews, editor (EPIC 2000). Price: $40.

The Consumer Law Sourcebook provides a basic set of materials forconsumers, policy makers, practitioners and researchers who areinterested in the emerging field of electronic commerce. The focus ison framework legislation that articulates basic rights for consumersand the basic responsibilities for businesses in the online economy.

"Cryptography and Liberty 2000: An International Survey of EncryptionPolicy," Wayne Madsen and David Banisar, authors (EPIC 2000). Price:

EPIC's third survey of encryption policies around the world. Theresults indicate that the efforts to reduce export controls on strongencryption products have largely succeeded, although severalgovernments are gaining new powers to combat the perceived threats ofencryption to law enforcement.

EPIC publications and other books on privacy, open government, freeexpression, crypto and governance can be ordered at:

EPIC Bookstore

"EPIC Bookshelf" at Powell's Books

[8] Upcoming Conferences and Events

Debate on Domestic Spying with EPIC's Marc Rotenberg and Former DeputyAttorney General Victoria Toensing. Justice Talking. April 12, 2004.
For more information:

International Workshop on Inverse Surveillance: Camphones, Cyborglogs,
and Computational Seeing Aids. April 12, 2004. Toronto, Canada.
Email hilab at

Workshop: Monitoring Software on Your PC: Spyware, Adware, and OtherSoftware. Federal Trade Commission. April 19, 2004. Washington, DC.
For more information:

CFP2004: 14th Annual Conference on Computers, Freedom, and Privacy.
Association for Computing Machinery (ACM). April 20-23, 2004.
Berkeley, CA. For more information:

29th Annual AAAS Colloquium on Science and Technology Policy.
American Association for the Advancement of Science. April 22-23,
2004. Washington, DC. For more information:

Innovation Law and Policy Colloquium. Bell University LaboratoriesCentre for Innovation Law and Policy, University of Toronto. April28, 2004. Toronto, Canada. Email rsvp.bul at

Fourth Annual Future of Music Coalition Policy Summit. Future ofMusic Coalition. May 2-3, 2004. Washington, DC. For moreinformation:

2004 IEEE Symposium on Security and Privacy. IEEE Computer SocietyTechnical Committee on Security and Privacy, in cooperation with theInternational Association for Cryptologic Research (IACR). May 9-12,
2004. Oakland, CA. For more information:

International Conference on Data Privacy and Security in a GlobalSociety. Wessex Institute. May 11-13, 2004. Skiathos, Greece. Formore information:

Global ICT Summit 2004: From Adversity to Success? The World's Beste-Content & e-Creativity Experience. World Summit Award, GlobalAlliance for Bridging the Digital Divide, World Wide Web ConsortiumHong Kong, Internet Professionals Association, Hong Kong Cyberport,
and Hong Kong General Chamber of Commerce. May 11-14, 2004. HongKong. For more information:

Third Annual Workshop on Economics and Information Security.
University of Minnesota Digital Technology Center. May 13-14, 2004.
Minneapolis, MN. For more information:

Critical Infrastructure Information: Conference on the Issues.
American University. May 14-16, 2004. Washington, DC. Emailsimpson at

Workshop on Privacy Enhancing Technologies. University of Toronto.
May 26-28, 2004. Toronto, Canada. For more information:

RSA Conference 2004. RSA Security. May 31-June 1, 2004. Tokyo,
Japan. For more information:

Fifth Annual Institute on Privacy Law: New Developments & ComplianceIssues in a Security-Conscious World. Practising Law Institute. June7-8, 2004. San Francisco, CA. For more information:

TRUSTe Symposium: Privacy Futures. June 9-11, 2004. InternationalAssociation of Privacy Professionals. San Francisco, CA. For moreinformation:

Access & Privacy Conference 2004: Sorting It Out. Government Studies,
Faculty of Extension. June 10-11, 2004. University of Alberta.
Edmonton, Alberta, Canada. For more information:

13th Annual CTCNet Conference: Building Connected Communities: ThePower of People & Technology. June 11-13, 2004. Seattle, Washington.
For more information:

Fifth Annual Institute on Privacy Law: New Developments & ComplianceIssues in a Security-Conscious World. Practising Law Institute. June21-22, 2004. New York, NY. For more information:

PORTIA Workshop on Sensitive Data in Medical, Financial, andContent-Distribution Systems. PORTIA Project. July 8-9, 2004.
Stanford, CA. For more information:

O'Reilly Open Source Convention. July 26-30, 2004. Portland, OR. Formore information:

First Conference on Email and Anti-Spam. American Association forArtificial Intelligence and IEEE Technical Committee on Security andPrivacy. July 30-31, 2004. Mountain View, CA. For more information:

Crypto 2004: The Twenty-Fourth Annual IACR Crypto Conference.
International Association for Cryptologic Research, IEEE ComputerSociety Technical Committee on Security and Privacy, and the ComputerScience Department of the University of California, Santa Barbara.
Santa Barbara, CA. August 15-19, 2004. For more information:

The Right to Personal Data Protection -- the Right to Dignity. 26thInternational Conference on Data Protection and Privacy Commissioners.
September 14-16, 2004. Wroclaw, Poland. For more information:

2004 Telecommunications Policy Research Conference. National Centerfor Technology & Law, George Mason University School of Law. October1-3, 2004. Arlington, VA. For more information:

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About EPIC

The Electronic Privacy Information Center is a public interestresearch center in Washington, DC. It was established in 1994 tofocus public attention on emerging privacy issues such as the ClipperChip, the Digital Telephony proposal, national ID cards, medicalrecord privacy, and the collection and sale of personal information.
EPIC publishes the EPIC Alert, pursues Freedom of Information Actlitigation, and conducts policy research. For more information, see or write EPIC, 1718 Connecticut Ave., NW, Suite200, Washington, DC 20009. +1 202 483 1140 (tel), +1 202 483 1248(fax).

If you'd like to support the work of the Electronic PrivacyInformation Center, contributions are welcome and fullytax-deductible. Checks should be made out to "EPIC" and sent to 1718Connecticut Ave., NW, Suite 200, Washington, DC 20009. Or you cancontribute online at:

Your contributions will help support Freedom of Information Act andFirst Amendment litigation, strong and effective advocacy for theright of privacy and efforts to oppose government regulation ofencryption and expanding wiretapping powers.

Thank you for your support.

END EPIC Alert 11.07


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