EPIC Alert 19.20
E P I C A l e r t
Volume 19.20 October 26, 2012
Published by the
Electronic Privacy Information Center (EPIC)
"Defend Privacy. Support EPIC."
Table of Contents
 Privacy Officials, Advocates Attend Uruguay Public Voice Conference
 EPIC FOIA Cases Move Forward in Federal
 TSA Unplugs, Boxes Up Airport Body Scanner X-ray Devices
 EU Data Protection Agencies Order Google to Improve User Privacy
 Presidential Commission Urges Privacy Protections for DNA Data
 News in Brief
 EPIC in the News
 Book Review: '500
 Upcoming Conferences and Events
Officials, Advocates Attend Uruguay Public Voice Conference
Civil society groups, privacy advocates, tech experts, other data
privacy professionals gathered on Monday, October 22, in Punta
Este, Uruguay, for the 2012 Public Voice conference. The conference,
"Privacy Rights Are a Global Challenge," was held in conjunction
the annual meeting of the International Data Protection and Privacy
Commissioners. The Public Voice conference covered enforcement
consumer privacy rights, privacy laws in Latin America, emerging
trends, and the implementation of the Madrid Declaration.
This year's Public Voice conference focused on five major topics:
measuring the impact of the Madrid Declaration of 2009; assessing
various international privacy perspectives; the spread of surveillance
technology and the resulting social and cultural implications;
law; and the interrelationship of government, technology,
society in Latin America. 2012 cosponsors included EPIC, the Mexican
NGOs Causacomun and Proteccion Datos Mexico, the
Foundation, the Open Democracy Advice Center, and ISACA. The
conference was webcast, with nearly 4000 participants
blogging the proceedings. The keynote speaker was Dr. Felipe Rotondo,
President of Uruguay's Personal Data Regulatory
and Control Unit.
Panelists included high-level privacy officials and advocates from
countries including France, Hong Kong, Colombia,
South Africa, Israel,
Chile, Germany, as well as representatives from the EU.
Public Voice conference participants were also able
to take advantage
of presentations and discussions at the 34th Annual Data Protection and
Privacy Commissioners' Conference, the
world's largest annual privacy
forum. The Privacy Commissioners' Conference brings together the
highest governemental authorities
and institutions guaranteeing data
protection and privacy, as well as academics, NGOs and other experts.
This year's conference
explored "Privacy and technology in balance,"
and included over 90 speakers representing over 40 countries.
EPIC established The
Public Voice coalition 1996 to promote public
participation in decisions concerning the future of the Internet. The
has pursued issues ranging from privacy and freedom of
expression to consumer protection and Internet governance. Through
conferences, reports and funding for travel the Public
Voice project seeks to increase the presence of NGOs at meetings across
the globe. In cooperation with the OECD, UNESCO, and other
international organizations, the Public Voice project brings civil
leaders face to face with government officials for constructive
engagement about current policy issues. Public Voice events have
held in Buenos Aires, Cape Town, Dubai, Hong Kong, Honolulu, Kuala
Lumpur, Madrid, Mexico City, Ottawa, Paris, Seoul, Tel
Washington, and Wroclaw.
The Public Voice
The Public Voice: "Privacy Rights Are a Global Challenge"
#TPV12 storifyed: The Public Voice Conference (Oct. 22, 2012)
34th Annual Conference of the Data Protection and Privacy Commissioners
The 2009 Madrid Declaration
 EPIC FOIA Cases Move Forward in Federal Court
Two federal judges have issued orders compelling US government
agencies to produce documents in open government cases pursued by
Both cases are proceeding in the federal district court for the
District of Columbia.
In EPIC v. Office of Director of National
Intelligence (ODNI), EPIC is
seeking information about a plan to integrate databases across the
federal government without the
legal safeguards typically in place for
government-held data on US persons. The ODNI is the top intelligence
agency in the US and
coordinates the data collection and analysis of
many federal intelligence and law enforcement agencies. This new
system would store
personal data for up to five years.
In response to EPIC's FOIA lawsuit against ODNI, a federal judge has
ordered the agency to
disclose the procedures it has established to
safeguard privacy rights. Specifically, EPIC seeks to discover if the
will comply with the requirements of the Privacy Act.
In EPIC v. Department of Homeland Security, EPIC is seeking documents
DHS Internet monitoring that some Justice Department officials
believe may "run afoul of privacy laws forbidding government
of private Internet traffic." The National Security
Agency has reportedly implemented a new program to monitor all web
flowing to select defense contractors via certain Internet
service providers. This program could violate the Electronic
Privacy Act, which prohibits the interception of
electronic communications without a court order.
In EPIC's case against DHS,
the government sought a 16-month extension.
The court has ordered DHS to begin producing documents in the next
month. Over the
course of the next five months, DHS must continue to
disclose documents according to certain deadlines and benchmarks.
FOIA developments, and in response to a detailed complaint
from EPIC, the government's FOIA Ombudsman has announced significant
changes that will assist all DHS FOIA requesters. Beginning October 1,
the Department of Homeland Security will conditionally grant
for qualified requests. EPIC had previously stated that DHS was
"throwing up roadblocks" by withholding fee waivers.
The Ombudsman also
has required DHS to inform non-commercial requesters that they are
entitled to two free hours of search time
and 100 free pages of
duplication. Previously, the agency did not inform requesters of this
legal right. Additionally, when fees
are imposed, DHS will now provide
requesters a detailed breakdown of costs.
EPIC: Court Order in EPIC v. DHS (Oct. 16, 2012)
EPIC: EPIC v. ODNI
EPIC: Press Release on EPIC v. ODNI (Aug. 2, 2012)-
EPIC: Court Order in EPIC v. DHS (Oct. 16, 2012)
EPIC: Complaint Against DHS (Mar. 1, 2012)
EPIC: DHS Response to EPIC Complaint (May 1, 2012)
EPIC: FOIA Request re: DHS Media Monitoring (Jul. 26, 2011)
EPIC: EPIC v. DHS (Defense Contractor Monitoring)
EPIC: Complaint to OGIS re: DHS Fee Waiver Practices (Jun. 1, 2012)
OGIS: Letter to EPIC re: DHS Fee Waiver Practices (Oct. 19, 2012)
OGIS: FOIA Ombudsman
EPIC: Open Government
EPIC: EPIC FOIA Cases
 TSA Unplugs, Boxes Up Airport Body Scanner X-ray Devices
According to several news sources, the Transportation Safety
Administration has begun removing the controversial backscatter x-ray
"Whole Body Imaging" scanners from major US airports and
with millimeter wave scanners, a less-intrusive but still controversial
The backscatter x-ray
devices have been widely criticized by medical
experts and privacy advocates. The European Union banned x-ray body
European airports in 2011, citing both unreliability and
potential health risks.
EPIC sued the Department of Homeland Security
to force disclosure of
technical documents about the body scanner program. The documents EPIC
received revealed, among other things,
that the Department of Homeland
Security publicly mischaracterized the findings of the National
Institute of Standards and Technology,
stating that NIST had "affirmed
the safety" of full body scanners. In fact, NIST never tested full-body
scanners for safety.
a subsequent lawsuit, EPIC v. DHS, the DC Circuit Court of Appeals
determined that air travelers have a right to opt-out of the
scanner screening and that the TSA must undertake a notice and comment
rulemaking. In the most recent decision, the court
has ordered the
agency to begin the public comment process by March 2013. Despite the
court order for public comment on body scanners,
in September 2012 the
Department of Homeland Security awarded $245 million in contracts for
TSA: Press Release
on AIT Deployment (Jan. 26, 2012)
EU: Press Release on Body Scanners at EU Airports (Nov. 14, 2011)
ProPublica: Article on X-Ray Scanner Removal (Oct. 19, 2012)
EPIC: EPIC v. DHS (Body Scanner Radiation Risks)
EPIC: Whole Body Imaging Technology and Body Scanners
 EU Data Protection Agencies Order Google to Improve
The French Data Protection Commission CNIL,
acting on behalf of the
European Union, has ordered Google to endorse key privacy principles,
comply with data protection laws,
and give users greater control over
their personal information. The decision follows an investigation
triggered by Google's privacy
policy unification in March 2012, which
allowed the company to combine user data across 60 Internet services.
sent Google two sets of questions about company
privacy practices - the first as an initial query, the second after
previous response "often incomplete or approximate."
Following several months of investigation, the Commission determined
Google's new centralized privacy policies violated EU data
protection laws because Google "does not collect unambiguous consent
of the user." The Commission then listed 12 steps, divided into two
categories, which Google should implement in order to ensure
with the law.
The first category covers "information" practices and suggests, "Google
should disclose and detail how
it processes personal data in each
service and differentiate the purposes for each service and each
category of data." This section
included suggestions for tiered privacy
notices, interactive privacy presentations within the services, precise
the data collected, and development of protocols for
smartphones. The second category of advice covered the "combination of
and suggested, "Google should take action to clarify the purposes
and means of the combination of data," by detailing "more clearly
data is combined across its services and develop new tools to give
users more control over their personal data." This section
simplifying opt-out procedures, requiring explicit consent to data
collection, limiting the amount of data collected,
different functions of the collected data, and applying the same
rigorous protections throughout the EU.
in 2012, EPIC sued the Federal Trade Commission to force the
FTC to enforce the terms of the agency's consent order with Google.
EPIC warned that the FTC's failure to enforce prior to March 1, 2012,
would cause "irreparable injury." EPIC cited Google's plans
user data without consent, and pointed to numerous cases that
established the need for the Court to assess the FTC's
failure to act.
CNIL: Letter to Google's Larry Page (Oct. 16, 2012)
CNIL: Appendix to Letter (Oct. 16, 2012)
National Assn. of AGs: Letter to Larry Page (Feb. 22, 2012)
Congressional Privacy Caucus: Letter to Jon Leibowitz (Feb. 17, 2012)
EPIC: Letter to Congress re: Google (Feb. 24, 2012)
TACD: Letter to Larry Page (Feb. 29, 2012)
EPIC: Google Buzz
EPIC: Enforcement of Google Consent Order
EPIC: EU Data Protection Directive
 Presidential Commission Urges Privacy Protections
for DNA Data
The Presidential Commission for the Study
of Bioethical Issues has
published a report, "Privacy and Progress in Whole Genome Sequencing."
The Commission, established in
November 2009 pursuant to an Executive
Order from the Obama White House, is tasked with "advising the President
on bioethical issues
that may emerge from advances in biomedicine and
related areas of science and technology." The report sets out a series
recommendations consistent with the unique nature of genetic
The Commission's 140-page report includes a set
of "Basic Ethical
Principles" for those who work with human DNA. These principles
include: (1) establishing and maintaining "clear
acceptable access to and permissible uses of whole genome sequence
data"; (2) urging federal and state governments
to have a "consistent
floor of privacy protections covering whole genome sequence data
regardless of how they were obtained"; (3)
ensuring the "security of
whole genome sequence data"; (4) stripping DNA sequences "of traditional
identifiers whenever possible
to inhibit recognition or re-
identification"; and (5) establishing "clear and consistent guidelines
for informed consent forms"
for DNA research.
According to the Commission, "[These] policies should protect
individual privacy by prohibiting unauthorized
whole genome sequencing
without the consent of the individual from whom the sample came." The
Commission further said "Only in
exceptional circumstances should
entities such as law enforcement or defense and security have access to
biospecimens or whole
genome sequence data for non health-related
purposes without consent."
EPIC has been a longtime advocate for genetic and medical
privacy. Earlier in 2012, EPIC responded to the Commission's request
for comments on issues of DNA privacy and access. EPIC's
noted that whole genome sequencing, or the mapping of DNA, merits an
unprecedented level of privacy protection: "Unlike
other forms of
personally identifiable information, genetic data and corresponding
biometric information are truly unique identifiers,"
EPIC Advisory Board member Professor Anita Allen has written that
unwanted disclosure of health information can result
in "major losses"
for the individual. According to Allen, these losses can include
"employment, loss of insurance, loss of school
choice, loss of
community standing, and loss of intimacy." EPIC advised the
Commission to recognize the finality of these potential
constructing a privacy framework, and it encouraged the Commission to
borrow from the framework of existing legal policies
data access, for example, the Genetic Information Nondiscrimination Act.
Presidential Commission for the Study
of Bioethical Issues
Presidential Commission: Paper on DNA Privacy (Oct. 2012)
EPIC: Comments to the Commission on DNA Privacy (May 25, 2012)
EPIC: Genetic Privacy
EPIC: Medical Records Privacy
 News in Brief
Federal Court Panel Blocks South Carolina Voter ID Requirement
A special panel of federal judges in Washington, DC has barred the
state of South Carolina from enforcing new voter identification
requirements in the upcoming November elections. The court was
to conclude" that South Carolina could implement voter identification
laws in a way that would "suffice under the Voting
Rights Act" before
November 6. The court did grant preclearance to implement the law after
the election, citing the "extremely
broad interpretation of the
reasonable impediment provision," which allows South Carolina voters to
complete an affidavit affirming
their identity and state their reason
for not having obtained photo identification. EPIC has previously
argued that voter ID requirements
impermissibly burden the right
DC Circuit Court: Decision in SC Voter Law (Oct. 10, 2012)
EPIC: Voter ID and Privacy
EPIC: Voter Registration and Privacy
EPIC: Voting Privacy
EPIC: Crawford v. Marion County
New Jersey Supreme Court Considers Mobile Phone Tracking Case
The New Jersey Supreme Court heard arguments October 22 in the case
State v. Earls, which centers on whether police may use mobile phone
tracking techniques without court approval. Earlier this year,
Supreme Court ruled in US v. Jones that law enforcement must obtain a
court order before attaching a GPS tracking device
to a vehicle. EPIC
filed a "friend of the court" brief in Earls, urging the New Jersey
court to uphold Fourth Amendment protections.
The mobile phone tracking
techniques at issue in the New Jersey case, EPIC argued, are "more
invasive than the GPS tracking in
Jones." Princeton attorney and EPIC
board member Grayson Barber argued for EPIC before the New Jersey court.
EPIC: State of New
Jersey v. Earls
EPIC: US v. Jones
EPIC: "Friend of the Court" Brief in State v. Earls (Feb. 2012)
EPIC: Grayson Barber
EPIC: Locational Privacy
FTC Proposes 'Best Practices' for Facial Recognition Technology
The Federal Trade Commission has released a report, "Facing Facts,"
which recommends that businesses using facial recognition technology
should follow certain practices in order to protect consumers'
and security. The report encourages practices such as privacy by
design, data deletion, and security standards. In services
facial recognition to identify individuals, the report recommends that
companies obtain consumers' "affirmative express
consent". In certain
sensitive locations, such as health care facilities, the report urges
that the technology should not be used
at all. In January 2012 comments
to the FTC, EPIC recommended a moratorium on the use of facial
recognition until adequate privacy
safeguards are developed. A similar
recommendation is found in the Madrid Privacy Declaration, which is
endorsed by more than 100
civil society organizations worldwide.
Facebook has ceased the use of facial recognition in the European
Union and suspended it
in the US.
FTC: Report on Facial Recognition Technology (Oct. 2012)
EPIC: Comments to FTC on Facial Recognition Technology (Jan. 31, 2012)
The Public Voice: The Madrid Privacy Declaration of 2009
EPIC: Facial Recognition
EPIC: Facebook and Facial Recognition
EPIC: Federal Trade Commission
Verizon Begins Invasive Marketing Program
Verizon has begun selling the personal information of Verizon users,
information and web browsing activity, via the
new "Precision Insights B2B" program. Verizon's collection of
implicates federal wiretapping law, although some
have suggested that Verizon escapes liability by allowing users to
previously filed a complaint with the Federal Trade
Commission regarding Verizon's business practices, which EPIC described
"unfair and deceptive, contrary to the privacy and security
interests of Verizon Wireless customers, and actionable by the Federal
Verizon: 'Precision Insights' Web Page
EPIC: Complaint with FTC Against Verizon (Oct. 28, 2011)
EPIC: Federal Trade Commission
EPIC: Electronic Communications Privacy Act (ECPA)
National Do Not Call Registry Tops 217 Million Phone Numbers
According to the Federal Trade Commission's 2012 "National Do Not
Registry Data Book", the number of actively registered phone numbers on
the DNC list is up, but so too are the number of consumer
about unwanted telemarketing calls. The FTC has continued to receive
large numbers of consumer complaints about so-called
though most telemarketing robocalls have been illegal since September
2009. EPIC supported establishment of the
Do Not Call Registry, and
recommended to Congress in 2010 that an effective Do Not Track
initiative would need to ensure that a
consumer's decision is
"enforceable, persistent, transparent, and simple."
FTC: National Do Not Call Data Book (Oct. 2012)
EPIC: Statement to Congress on Do Not Track Legislation (Dec. 9, 2010)
EPIC: Telemarketing and the Telephone Consumer Protection Act
EPIC: Online Tracking and Behavioral Profiling
 EPIC in the News
"Shifting Mood May End Blank Check for U.S. Security Efforts." The New
York Times, Oct. 24, 2012.
"Privacy Concerns Linger Over FBI's New Facial Recognition System."
The Huffington Post, Oct. 24, 2012.
"Lawyers Discuss Supreme Court Cases on Sniffer Dog Use," C-Span, Oct.
"N.J. Supreme Court to tackle privacy issues in cellphone, GPS case."
The Record, Oct. 22, 2012.
"Markey grills Microsoft over privacy changes." The Hill, Oct. 22, 2012.
"Setback for secret Big Brother database." WorldNet Weekly, Oct. 20,
"TSA Removes X-Ray Body Scanners From Major Airports." ProPublica, Oct.
"Did Facebook violate its FTC agreement?" Lexology, Oct. 17, 2012.
"Presidential commission recommends baseline rules for genetic info."
Government Security News, Oct. 16, 2012.
L.A. Times, Oct. 16, 2012.
For More EPIC in the News:
 Book Review: '500 Days'
"500 Days: Secrets and Lies in the Terror Wars," Kurt Eichenwald
Journalist Kurt Eichenwald's "500 Days" provides a detailed account of
the 504 days following the events of September 11, 2001.
of the terror wars" was established during that period, Eichenwald
explains, and the remaining six years of George
W. Bush's presidency
"was little more than reactions to those early decisions."
Eichenwald's book doesn't conform to conventional
theatrical unities of
time, place, and action, but still reads as if it were written for the
stage. In fact, Eichenwald reserves
the first pages of "500 Days" to
establish the "cast of characters," including senior Executive
officials, administrative decision-makers,
figures, and political journalists. Readers are made to feel as if
Eichenwald is giving them a "backstage
tour" through the familiar
events following 9/11,from the inside perspective of those who called
"500 Days" takes readers
through a fast-paced, and sometimes confusing,
timeline of theactions that took place in Washington, DC and around the
that crucial period. Eichenwald is able to maintain a
level of objectivity as he respectfully depicts highly emotional events
recent American history, including the rebellion of the passengers
of Flight 93 against their terrorist captors: "the lead hijacker,
Jarrah, had been maneuvering the plane violently, rocking it side to
side, then up and down, attempting to throw the counterattackers
balance. But to no avail - they kept coming." Far from separating the
reader from these events, Eichenwald's meticulous tone
and level of
detail connect the reader to the sensitive subject matter without
In a work of fiction, Eichenwald's
continual descriptions of
intelligence information ignored, misinterpreted, and misused might be
called "black comedy." Here, the
frequent errors and lapses are real
and tragic. It is impossible to ignore the irony that lax intelligence
and vigilance prior
to 9/11 led to a decade of unprecedented,
unwarranted surveillance and government intrusion. "This battle was
about more than the
security of American citizens," says Eichenwald,
indirectly quoting an attorney in the George W. Bush White House. "It
the protection of civilization itself." A few pages later
Eichenwald lists some of the civil liberties that would be given up in
this pursuit of security - for instance, the steps taken to update the
Foreign Intelligence Surveillance Act.
introduction makes clear that "500 Days" is
intended to depict the events that immediately followed 9/11, the
is derived from Eichenwald's careful consideration
of the individuals behind those events. Familiar names - Salam Hamdan,
Donald Rumsfeld - are depicted as real, three-dimensional
people. We join Hamdan as he first became aware and contemplated the
consequences of bin Laden's actions; Yoo as he answered phones at a
"tacky, wood-laminated table"; and Rumsfeld as he rushed to
of the Pentagon crash and dug through the rubble. Eichenwald's work
ultimately reminds readers that the current civil-liberties
the US did not happen overnight, and was not conjured from smoke and
mirrors. Rather, it was meticulously, though not
crafted around us during a moment of unexpected, unprecedented national
-- Amie L. Stepanovich
"Litigation Under the Federal Open Government Laws 2010," edited by
Harry A. Hammitt, Marc Rotenberg, John A.
Verdi, Ginger McCall, and Mark
S. Zaid (EPIC 2010). Price: $75
Litigation Under the Federal Open Government Laws is the most
comprehensive, authoritative discussion of the federal open access
This updated version includes new material regarding President Obama's
2009 memo on Open Government, Attorney General Holder's
March 2009 memo
on FOIA Guidance, and the new executive order on declassification. The
standard reference work includes in-depth
analysis of litigation under:
the Freedom of Information Act, the Privacy Act, the Federal Advisory
Committee Act, and the Government in the Sunshine Act. The fully updated
2010 volume is the
25th edition of the manual that lawyers, journalists
and researchers have relied on for more than 25 years.
"Information Privacy Law: Cases and Materials, Second Edition" Daniel
J. Solove, Marc Rotenberg, and Paul Schwartz. (Aspen 2005).
This clear, comprehensive introduction to the field of information
privacy law allows instructors to enliven their teaching of fundamental
concepts by addressing both enduring and emerging controversies. The
Second Edition addresses numerous rapidly developing areas of
law, including: identity theft, government data mining and electronic
surveillance law, the Foreign Intelligence Surveillance
intelligence sharing, RFID tags, GPS, spyware, web bugs, and more.
Information Privacy Law, Second Edition, builds a cohesive
for an exciting course in this rapidly evolving area of law.
"Privacy & Human Rights
2006: An International Survey of Privacy Laws
and Developments" (EPIC 2007). Price: $75.
This annual report by EPIC and Privacy International provides an
overview of key privacy topics and reviews the state of privacy
75 countries around the world. The report outlines legal protections,
new challenges, and important issues and events relating
Privacy & Human Rights 2006 is the most comprehensive report on privacy
and data protection ever published.
"The Public Voice WSIS Sourcebook: Perspectives on the World Summit on
the Information Society" (EPIC 2004). Price: $40.
This resource promotes a dialogue on the issues, the outcomes, and the
process of the World Summit on the Information Society (WSIS).
reference guide provides the official UN documents, regional and
issue-oriented perspectives, and recommendations and proposals
future action, as well as a useful list of resources and contacts for
individuals and organizations that wish to become more
involved in the
"The Privacy Law Sourcebook 2004: United States Law, International
and Recent Developments," Marc Rotenberg, editor (EPIC 2005). Price:
The Privacy Law Sourcebook, which has been called the "Physician's Desk
Reference" of the privacy world, is the leading resource
attorneys, researchers, and journalists interested in pursuing privacy
law in the United States and around the world.
It includes the full
texts of major privacy laws and directives such as the Fair Credit
Reporting Act, the Privacy Act, and the OECD
Privacy Guidelines, as
well as an up-to-date section on recent developments. New materials
include the APEC Privacy Framework, the
Video Voyeurism Prevention Act,
and the CAN-SPAM Act.
"Filters and Freedom 2.0: Free Speech Perspectives
on Internet Content
Controls" (EPIC 2001). Price: $20.
A collection of essays, studies, and critiques of Internet content
filtering. These papers are instrumental in explaining why filtering
threatens free expression.
EPIC publications and other books on privacy, open government, free
expression, and constitutional values can be ordered at:
EPIC also publishes EPIC FOIA Notes, which provides brief summaries of
interesting documents obtained
from government agencies under the
Freedom of Information Act.
Subscribe to EPIC FOIA Notes at:
 Upcoming Conferences and Events
Privacy and Civil Liberties Oversight Board (PCLOB), First Public
Meeting. 30 October 2012, Washington, DC. For More Information:
Contact Matthew B. Conrad, +1-202-690-8906.
2012 TCIPG Industry Workshop: "Building Cyber Security and Resiliency
into the Grid."
30-31 October 2012, Champaign, IL. For More Information:
PIPA Conference 2012: "Privacy on the Go." 1-2 November 2012, Calgary,
Alberta. For More Information: http://privacyconference2012.ca.
Annual Computer Security Applications Conference (ACSAC) 2012. 6
December 2012, Orlando, FL. For More Information:
"Computers, Privacy and Data Protection: Reloading Data Protection."
23-25 January 2013, Brussels. For More information:
22nd Annual Computers, Freedom, & Privacy Conference. 5-6 March 2012,
Washington, DC. For More Information: Contact Chris Calabrese
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