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EPIC Alert 12.14 [2005] EPICAlert 15


Volume 12.14 July 14, 2005

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

Table of Contents

[1] EPIC Urges FTC to Investigate Online Private Investigators
[2] Privacy Problems Remain at Homeland Security Even With Restructuring
[3] Banks, Sports Authority Target Anti-Telemarketing Laws
[4] Congressional Committees Consider Patriot Act Reauthorization
[5] Justice O'Connor Respected Privacy, Defended States' Rights
[6] News in Brief
[7] EPIC Bookstore: John Twelve Hawks's The Traveler
[8] Upcoming Conferences and Events

[1] EPIC Urges FTC to Investigate Online Private Investigators

EPIC urged the Federal Trade Commission to initiate an industry-wideinvestigation of online investigation services last week. In a complaintto the FTC, EPIC documented the practices of one online investigationsite, That site advertises for sale personalinformation that is protected by federal privacy law, and normallycannot be obtained without violating the law.

Specifically, the EPIC complaint highlighted the sale oftelecommunications records and the ownership information of PostalService and private mailboxes. offers for salebilling records of both wireless and landline telephone accounts, for$187 and $87, respectively. These billing records show all the callsplaced and received and their duration. Under federal law, billingrecords are confidential and can only be disclosed under specificcircumstances, such as when a court order is obtained. Nevertheless, advertises the availability of these records, butcautions that they are for "your personal informational purpose only.
These reports are NOT valid in a court of law."

Postal Service and private mailbox ownership information is protected byfederal regulations and can only be disclosed to government agencies,individuals attempting to serve legal process, or to an individual witha court order. Despite these protections, offersfor sale information on Postal Service box owners for $77, and privatebox owners for $97. As with the phone calling records, makes suspicious representations concerning thesources and availability of the data: "Investigators work withpostmasters all over the USA. It is up to the individual Postmasterwhether they want work [sic] with the investigator..."

EPIC's complaint notes that many other sites are advertising similarservices to Some of these other sites offer theactual identity of people who use screen names on AOL,,, Lavalife, and In addition to calling for anindustry-wide investigation, EPIC urged the FTC to seek legislation toexpand protections against pretexting, the practice of pretending tohave a legitimate reason to access the account holder's information; andthrough access to consumers' online billing accounts.

EPIC's Complaint to the FTC:

Washington Post article:

Wall Street Journal article:,,SB112077534843280100,00.html

[2] Privacy Problems Remain at Homeland Security Even With Restructuring

Yesterday, Homeland Security Secretary Michael Chertoff announced arestructuring of the department and some of its programs. Two aspects ofthe plan are of significance to privacy rights: the failure tostrengthen the authority of the Department of Homeland Security PrivacyOffice and the expansion of personal data gathered for US-VISIT.

Homeland Security's Privacy Office's effectiveness in pursuing privacycomplaints is lacking. The office has no authority to issue subpoenasand must depend on voluntary cooperation to conduct its investigations.
This limitation has hampered the office's ability to identify andcorrect violations of federal privacy law. For example, a November 2003email obtained by EPIC under the Freedom of Information Act shows thePrivacy Office had difficulty gathering information for itsinvestigation of the Transportation Security Administration's role inthe transfer of JetBlue Airways passenger data to a Defense Departmentcontractor. Noting that "information has not been forthcoming" inresponse to internal inquiries, Chief Privacy Officer Nuala O'ConnorKelly wrote, "we're getting better information from outside than we havefrom our own folks at this time."

Several Democratic members of the House of Representatives criticizedthe omission of broader powers for the Privacy Office in Mr. Chertoff'splan. The members said in a statement that "[t]he Secretary should haveasked Congress for new authority to permit the Privacy Officer to: (1)
access all records deemed necessary; (2) undertake any privacyinvestigation that the Privacy Officer believes is appropriate; (3)
subpoena documents from the private sector when necessary to fulfillstatutory mandates; (4) obtain sworn testimony; and (5) take the sameactions that the Department's Inspector General may take in order toobtain answers to questions and responsive documents required forinvestigatory work. To insulate the Privacy Officer from outsidepolitical pressure, the position should be granted a five-year term andshould be allowed to submit reports directly to Congress." According tothe statement, "[t]he Secretary's failure to request these new powersfor the Privacy Officer was a mistake."

Mr. Chertoff also announced that Homeland Security would expand thecollection of biometric data from visitors entering the country throughthe US-VISIT program. From its inception in 2003, the US-VISIT programhas used a two-fingerprint identification system, but Homeland Securitynow will begin collecting a full ten-fingerprint set from travelers.
This expands the already vast amount of personal data accumulated by theprogram, including some data about U.S. citizens and legal permanentresidents. This information includes complete name, date of birth,citizenship, sex, passport number and country of issuance, country ofresidence, United States visa number, date, place of issuance (whereapplicable), alien registration number (where applicable), address whilein the United States, and such other information.

Department of Homeland Security Press Release About Restructuring:

Statement of Some Democratic Members of the House of Representatives inResponse to the Department of Homeland Security Restructuring (pdf):

E-mail from Chief Privacy Officer Nuala O'Connor Kelly obtained underthe Freedom of Information Act (pdf):

EPIC's Air Travel Privacy Page:

July Spotlight on Surveillance About US-VISIT:


[3] Banks, Sports Authority Target Anti-Telemarketing Laws

Major retailers, like the Sports Authority; telemarketing companies; andlarge banks have petitioned the Federal Communications Commission,urging the agency to "preempt," or supercede, anti-telemarketing laws infive states
Florida, New Jersey, Indiana, Wisconsin, and North Dakota.
These five states do not recognize the "established businessrelationship" exception to the telemarketing Do-Not-Call Registry. Thisloophole allows companies to contact their current customers, even ifthey are on the Do-Not-Call Registry. If an individual makes anypurchase or requests any information from a business, he or she hascreated an "established business relationship." In the case ofpurchases, the business may call the individual for the next 18 months;
if the individual merely requested information, the business may callfor 3 months.

In the petitions, some of the groups, such as Sports Authority, admitthat they aren't using standard telemarketing; instead they are usingpre-recorded voice message telemarketing on their existing customers. Inthis marketing technique, a computer is programmed to call thousands ofpeople and play a recorded message. Unlike live telemarketing,pre-recorded voice requires the Sports Authority and banks to use fewerresources, allowing them to initiate millions of calls a day. If theFederal Communications Commission preempts these five states, forcingthem to recognize the federal "established business relationship"
exception, the number of telemarketing calls will increase dramatically.

EPIC and a coalition of groups are filing comments in opposition to thepetitions. These comments argue that compliance with state telemarketinglaw is easier now than ever, and that the same technologies thattelemarketers use to target solicitations could be used to comply withstate privacy laws. Individuals are encouraged to file comments insupport of state-level protections against telemarketing, and against"established business relationship" telemarketing calls unless thebusiness first gives clear notice of the intent to telemarket and gainsverifiable consent from the customer.

EPIC's Telemarketing Preemption Page:

FCC Electronic Comment Filing System:

Sports Authority Preemption Petition (requesting preemption of Floridalaw) (pdf):

Allied Preemption Petition (requesting preemption of all state laws)

FCC Request for Comments on the Sports Authority and Banks' Petitions:

FCC Request for Comments on the Allied Petition:

[4] Congressional Committees Consider Patriot Act Reauthorization

This week the House Judiciary Committee will vote whether to renew keyprovisions of the Patriot Act that would otherwise expire this year.
Among the key provisions are several that expand the use of secretsearch authority under the Foreign Intelligence Surveillance Act of1978. The FISA permits the government to pursue a search for "foreignintelligence" information below traditional Fourth Amendment standards.
The determinations are made by a secret court, and traditional remediesfor abuse, such as suppression, do not apply.

Since passage of the Patriot Act, there has been a dramatic increase inthe use of FISA powers. According to the Department of Justice's annualFISA reports, the number of FISA applications granted increased from1,012 in 2000 to 1,754 in 2004. In 2003 and 2004, there were more FISAwarrants issued than regular federal wiretap warrants, which follow astringent legal standard. Prior to passage of the Patriot Act, this hadnever occurred.

The final report of the 9/11 Commission recommended a two-part test forPatriot Act renewal. It said first that the burden of proof for renewalfell on the president to show that the various provisions materiallyenhance security. The Commission also said that there must be adequatesupervision of such powers to ensure that civil liberties are protected.
If the power is renewed, the Commission emphasized, there must beappropriate guidelines and oversight to prevent misuse.

To date, there is little indication that the use of FISA authority hasmaterially enhanced security or that adequate means of oversight for theexpanded use of the 1978 law has been established.

H.R. 3199, the USA PATRIOT and Terrorism Prevention Reauthorization Actof 2005:

House Judiciary Committee Markup of the USA PATRIOT and TerrorismPrevention Reauthorization Act of 2005:

EPIC's PATRIOT Sunset Page:

EPIC's Wiretap Page:

EPIC's Foreign Intelligence Surveillance Act Page:

9/11 Commission recommendations (pdf):

[5] Justice O'Connor Respected Privacy, Defended States' Rights

Justice Sandra Day O'Connor, described by many as a critical swing voteon a closely divided Supreme Court, announced her retirement from theU.S. Supreme Court on July 1. She also should be remembered for herjudicial independence. In a series of opinions -- concurrences anddissents, as well as decisions on behalf of the Court -- she raisedconcerns about police databases, opposed suspicionless drug testingstatutes, defended innovative legislative efforts by the states, andsupported "open government" laws. Justice O'Connor was the first femaleSupreme Court justice and a former majority leader in the ArizonaSenate.

Justice O'Connor was a proponent of the idea that states should serve aslaboratories for new social and economic experiments. This idea, firstcontemplated by the Framers, was reiterated by Justice Louis Brandeis in1932 and served as an influence for many of Justice O'Connor's decisionsthroughout the years. Consistent with these ideals, O'Connor deliveredseveral unexpected opinions including the recent dissent in Gonzales v.
Raich (2005). She disagreed with the majority's holding that Congresshas the power to prohibit and prosecute the possession and use ofmarijuana for medical purposes, even in the states that permit such use.

Throughout her opinions, Justice O'Connor also worked to uphold theprinciples of the Constitution and the Bill of Rights. Whether the casewas mandatory drug testing in schools or drug checkpoints in Indiana,Justice O'Connor wrote that suspicionless searches violated the FourthAmendment. In Watchtower Bible v. Village of Stratton (2002), she votedto uphold the First Amendment's right to anonymous speech.

Privacy Highlights of Justice O'Connor's Career:

Justice O'Connor in concurrence, on technology and law enforcement:

The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities. Arizona v. Evans (2005)

Justice O'Connor in dissent, arguing against suspicionless drug testingin schools:

T]he substantial consequences that can flow from a positive test,
such as suspension from sports, are invariably - and quite reasonably - understood as punishment. The best proof that the District's testing program is to some extent accusatory can be found in James Acton's own explanation on the witness stand as to why he did not want to submit to drug testing: "Because I feel that they have no reason to think I was taking drugs." It is hard to think of a manner of explanation that resonates more intensely in our Fourth Amendment tradition than this. Vernonia School District v. Acton (1995)

Justice O'Connor, writing for a plurality of the Court, on a reasonableexpectation of privacy in the workplace:

Given the societal expectations of privacy in one's place of work expressed in both Oliver and Mancusi, we reject the contention made by the Solicitor General and petitioners that public employees can never have a reasonable expectation of privacy in their place of work. Individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.
O'Connor v. Ortega (1987)

EPIC's Sandra Day O'Connor Legacy Page:

Watchtower Bible Oral Argument (O'Connor excerpt) (mp3):

Supreme Court Web site:

[6] News in Brief

CA Data Broker Bill Dies in Assembly CommitteeA day after data broker legislation sailed through the CaliforniaAssembly Judiciary Committee, the body's Insurance Committee killed thebill by a 2 to 5 vote. The data broker bill would have requiredcompanies that sell personal information to certify that their clientswere legitimate and to provide individuals with copies of their dossier.
Despite the many amendments that the bill's sponsor, Sen. Jackie Speieraccepted to narrow the bill, objections were made by data brokers,banks, consumer reporting agencies, private investigators, and otherswho traffic in individuals' personal information. Attention now shiftsfrom California to Washington, DC, where bipartisan databroker billshave been introduced by the leadership of the Senate Judiciary andCommerce Committees, and by the House Commerce Committee.

SB 550, California Data Broker Access and Accuracy Act of 2005

S. 1332, Personal Data Privacy and Security Act of 2005

In United Kingdom, Civil Liberties at Risk After London AttacksIn the aftermath of the bomb attacks in London last week, governmentproposals pose risks to civil liberties in the country. The UK HomeSecretary has convinced European Union ministers to force European phoneand Internet companies to retain records of calls, text messages ande-mails. A similar proposal was rejected in May by the EuropeanParliament's civil liberties' committee. The committee found thatterrorists could avoid being traced by the system by using telephonecards, public telephones or using Internet companies outside Europe.
Also, the media reports London authorities are considering installationof backscatter X-ray scanners in Tube stations throughout the city.
These machines, which show detailed images of a person's naked body, areequivalent to a "virtual strip search." EPIC's June Spotlight onSurveillance highlighted the privacy risks associated with thesemachines.

EPIC's June Spotlight on Surveillance About Backscatter X-Ray Machines:

EPIC's Backscatter X-Ray Screening Technology Page:

Germany Approves Plan to Add Biometric Data to PassportsOn July 8, the German Parliament approved a proposal to introduce newelectronic passports containing biometric data. A chip contained in thedocument will initially contain a digital picture of the traveler'sface, and will store fingerprints starting in March 2007. These new"ePass" passports will be issued beginning in November. The ePass uses aRadio Frequency Identification chip to store and transmit information tospecialized readers that will be installed in all border stations.
Officials say the chip can only be read by calculating a special accesscode when the booklet is opened. The new passports will cost Germancitizens 59 Euros ($71) each, more than double their current cost of 23Euros ($27).

EPIC's Biometrics Page:


U.S. Court: Navy Wrongfully Discharged Man for Refusing to Use SSNThe U.S. Court of Federal Claims ruled in Carmichael v. U.S. that theNavy wrongfully discharged David Alan Carmichael after failing toproperly consider his request for religious accommodation. Mr.
Carmichael had sought to have his Military Personnel IdentificationNumber changed to a number other than his Social Security Number (SSN).
For reasons of religious conviction, Mr. Carmichael had attempted todisassociate himself and his family from all involvement with the SocialSecurity program, including the use of an SSN. In 1996, he wrote aletter to the Commissioner of Social Security, and attempted to"opt-out" of the Social Security program. From then until his dischargefrom the Navy on March 17, 1997, he refused to sign documents thatidentified him by his SSN. A previous decision by the Court of FederalClaims to dismiss Mr. Carmichael's wrongful discharge claim had beenvacated and remanded by the U.S. Court of Appeals.

U.S. Court of Federal Claims Ruling in Carmichael v. US (pdf):

EPIC's Social Security Number Page:

Reporter's Imprisonment Sparks Debate About Press FreedomNew York Times reporter Judith Miller was imprisoned on July 6 on acontempt order after she refused to name her anonymous source to a grandjury investigating the leak of a CIA operative's name. In February, aU.S. Court of Appeals rejected Ms. Miller's defense of "reporter'sprivilege, " or right to maintain source anonymity. The Supreme Court,which has declined to hear Ms. Miller's appeal, held in 1972 thatreporters must testify if there is a "compelling" state interest.
However, many courts recognize a reporter privilege under the FirstAmendment, and virtually all states have shield laws protectingjournalists. Press advocates fear that failing to uphold sources'
anonymity will frustrate reporters' ability to bring sensitiveinformation to light. Ms. Miller faces up to four months in jail, thelength of time before the term of the grand jury in the case expires.

EPIC's Privileges Page:

EPIC's Privacy Protection Act Page:

Lufthansa, Siemens Roll Out Biometric Ticketing SystemLufthansa, Germany's national airline and the third biggest in Europe,is testing biometric ticketing on 400 of its employees at FrankfurtAirport. The system, designed by Siemens, translates a thumbprint into abarcode at check-in. Then, before boarding, the barcode is scanned andmatched with the passenger's thumbprint for verification. The pilotproject is called "Trusted Traveler" and is expected to be widelyimplemented by 2006. Lufthansa says the program will be voluntary, butwill encourage its frequent fliers to have the thumbprint barcode addedto their frequent flier cards.

EPIC's Air Travel Privacy page:

[7] EPIC Bookstore: John Twelve Hawks's The Traveler

John Twelve Hawks, The Traveler (Doubleday Books, 2005)

"The facts you know are mostly an illusion. The real struggle of historyis going on beneath the surface." While this quote could easily comefrom one of the "Matrix" films, it is in fact from The Traveler by JohnTwelve Hawks, a new science fiction book about the struggle between goodand evil in a surveillance society.

In Twelve Hawks' world, the good guys are the Travelers, select humansborn to enlighten mankind and resist the dominance of the evil Tabula.
The Tabula are a dark and powerful group that operates outside thestrictures of government, working behind the scenes to establish apanoptic world of perfect control. The Tabula employ high-tech,privacy-invasive tools such as video surveillance, RFIDs, biometrics,and Carnivore to track and eliminate threats to their master plan. Theyalso manipulate the "Vast Machine," a matrix of media, government, andcorporate messages that fills people's minds with selective informationand distracts them from the reality that their lives are externallyconstructed and controlled, preventing them from questioning the statusquo. Travelers -- who include Buddha, Jesus Christ, and Joan of Arcamong their fallen ranks -- inspire people to break free of theillusions generated by the Vast Machine. Instead of killing theTravelers, as the Tabula have done in the past, they now want to harnessthe Travelers' powers as part of the larger plan to build the perfectpanopticon.

The Traveler manages to weave technology, philosophy, history, mysticismand pop culture into an epic story, making for an entertaining andthoughtful read. While not a literary novel in the style of Orwell orKafka, The Traveler is a story that has the potential to raise questionsabout the state of privacy among popular audiences. The book iscurrently on the New York Times Bestseller list and is set to become amovie early next year.

-- Louisa Garib

EPIC Publications:

"Privacy & Human Rights 2004: An International Survey of Privacy Lawsand Developments" (EPIC 2004). Price: $35.

This survey, by EPIC and Privacy International, reviews the state ofprivacy in more than sixty 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.

"FOIA 2004: Litigation Under the Federal Open Government Laws," HarryHammitt, David Sobel and Tiffany Stedman, editors (EPIC 2004). Price:

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 22ndedition 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.

"The Public Voice WSIS Sourcebook: Perspectives on the World Summit onthe Information Society" (EPIC 2004). Price: $40.

This resource promotes a dialogue on the issues, the outcomes, and theprocess of the World Summit on the Information Society (WSIS). Thisreference guide provides the official UN documents, regional andissue-oriented perspectives, as well as recommendations and proposalsfor future action, as well as a useful list of resources and contactsfor individuals and organizations that wish to become more involved inthe WSIS process.

"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.

"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

EPIC also publishes EPIC FOIA Notes, which provides brief summariesof interesting documents obtained from government agencies under theFreedom of Information Act.

Subscribe to EPIC FOIA Notes at:

[8] Upcoming Conferences and Events

Smart IDs: A Smart Idea? July 15, 2005. National Academies, Washington,DC. For more information: (Media Contact) Office of News and PublicInformation, 202-334-2138. (Other Inquiries) Jason Leith, Science &
Policy Fellow, 202-334-3223; e-mail:

PEP05: UM05 Workshop on Privacy-Enhanced Personalization. July 25, 2005.
Edinburgh, Scotland. For more information:

National Driver's License Strategy Meeting. July 27, 2005. Washington,DC. Travel scholarships for state and local organizations are available.
For more information:

3rd International Human.SocietyInternet Conference. July 27-29,
2005. Tokyo, Japan. For more information:

Access to Information: Analyzing the State of the Law. RileyInformation Services. September 8, 2005. Ottawa, Ontario. For moreinformation:

5th Annual Future of Music Policy Summit. Future of Music Coalition.
September 11-13, 2005. Washington DC. For more information:

Conference On Passenger Facilitation & Immigration: Newest trends inachieving a seamless experience in air travel International AirTransport Association (IATA) and Singapore Aviation Academy (SAA)
October 3-5, 2005 Singapore Aviation Academy. For more information:

Public Voice Symposium: "Privacy and Data Protection in Latin America -
Analysis and Perspectives." Launch of the first Spanish version of"Privacy and Human Rights." October 20-21, 2005, Auditorio AlbertoLleras Camargo de la Universidad de los Andes, Bogota, Colombia.
Organizers: Electronic Privacy Information Center (EPIC), Grupo deEstudios en Internet, Comercio Electrónico, Telecomunicaciones eInformática (GECTI), Law School of the Universidad de los Andes, Bogota,Colombia, Computer Professional for Social Responsibility-Peru(CPSR-Perú). For more information:

6th Annual Privacy and Security Workshop. Centre for Innovation Law andPolicy (University of Toronto) and the Center for Applied CryptographicResearch (University of Waterloo). November 3-4, 2005. University ofToronto. For more information:

The World Summit on the Information Society. Government of Tunisia.
November 16-18, 2005. Tunis, Tunisia. For more information:

Internet Corporation For Assigned Names and Numbers (ICANN) Meeting.
November 30-December 4, 2005. Vancouver, Canada. For moreinformation: target="_blank">

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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.


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