Tuesday, November 08, 2022



Republican National Committee Targets Google Censorship in Lawsuit

After enduring years of targeted censorship, the Republican National Committee is suing Google for its bulk-labeling of millions of RNC campaign email communications to its supporters and donors as “spam” during “pivotal points in election cycles.”

The lawsuit, filed in federal court in California, where Google has its corporate headquarters, is seeking an injunction ordering Google to stop its “en masse,” “egregious filtering,” and asking for “actual, statutory, and exemplary damages” and attorneys’ fees.

Political campaigns and political parties have become increasingly reliant on email services, such as Gmail. While the midterm elections will soon be over, the 2024 presidential election cycle will start shortly thereafter, and the decision in this case could have a serious impact on both the conduct and the outcome of the next presidential election.

The RNC is alleging that Google is discriminating against Republicans by using its Spam Filter Algorithm to reduce the visibility of the RNC’s emails, including labeling as “spam” RNC emails to individuals who have specifically requested to be on the RNC’s email communications list.

Specifically, Google has targeted the fundraising efforts of the RNC, resulting in the loss of an estimated more than $2 billion in donations since 2019, according to the complaint.

But the lawsuit also alleges that Google has been targeting its emails that “communicat[e] political messaging and important Get-Out-The-Vote information.”

Emails are a “crucial conduit” for the RNC to engage “in its core mission of conducting political activity,” something that is undoubtedly true for all political parties and party organizations, not just the RNC.

Earlier this year, North Carolina State University published a study that found emails from Republican candidates for office were marked as spam at a rate 820% higher than the emails of their Democratic opponents, significantly disadvantaging Republican candidates.

As argued by the RNC, this study credibly proves that Google’s Spam Filter Algorithm is deliberately censoring Republicans.

Instead of ending the censorship of Republican candidates, Google has “fallen silent,” according to the complaint, and it has quit responding to RNC efforts to work out a remedy, instead urging the RNC to join its “Verified Sender Program,” which would impose even more stringent rules on RNC emails that wouldn’t resolve the censorship.

And the RNC claims that the discrimination by Google in filtering its emails increased dramatically in February of this year as the 2022 election cycle got underway.

The lawsuit provides an interesting historical context for the alleged violations that emphasizes that while the internet and email communications are modern technological developments, the principle at stake and the issue involved with a private company having “market-dominant” control over important communications is not a new one.

The complaint points out that in the mid-1800s, the equivalent of today’s email communications were telegrams and the newly developed telegraph system. Just like Google today, one company, Western Union, “had a dominant market share across the country.”

The complaint alleges that Google controls 53% of the email traffic in the country.

Citing NetChoice LLC v. Paxton, a case this year out of the 5th U.S. Circuit Court of Appeals, the complaint says that legislators grew concerned over “the possibility that the private entities that controlled this amazing new technology” of almost instant communications through the telegraph system “would use that power to manipulate the flow of information to the public when doing so served their economic or political self-interest.”

Western Union “repeatedly discriminated” against certain telegram senders based on their political views and affiliations, and influenced the “reporting of political elections in an effort to promote the election of candidates” favored by the directors of the company.

Many states enacted laws outlawing such discrimination in telegraph services, including California, which is apparently one of the reasons this lawsuit was filed in that state. The RNC is claiming that Google is a “common carrier” within the definition of that state’s law that requires communication companies to “deliver messages without preference in time, price, or otherwise.”

The complaint further alleges that Google is violating a California civil rights law that guarantees “full and equal” treatment by all business establishments. Exclusionary policies based on “political affiliation” are unlawful discrimination.

The RNC is also asserting violations under California’s unfair business practices statute, as well as tort claims for both negligent and intentional “interference with prospective economic relations.”

In addition to these state law claims, the RNC is alleging that Google’s discriminatory actions violate the federal Telecommunications Act, 47 U.S.C. § 202. The RNC acknowledges that the Federal Communications Commission does not currently classify Google as a “common carrier” within the definition of that law and that several court decisions have upheld the FCC’s decision as reasonable. But the RNC says it is preserving “the issue for further review or intervening Supreme Court authority.”

This is an important case, because it raises a crucial issue that the courts, Congress, and state legislatures ought to address. When private companies dominate or virtually monopolize communications used by the public—the same way Western Union did throughout the 19th century—are they prohibited from engaging in discrimination and in selective censorship and filtering in accordance with the political views, opinions, and interests of the directors of those companies? Or should they be treated like other private entities over whom the government has no regulatory authority?

Google has abused its email and internet-browsing dominance to control speech online. Regardless of the outcome of this case, the tech giant ought to be far more transparent with the American people over how it moderates and censors content. The country would never accept a telecommunications firm blocking phone calls, or the Postal Service redirecting political mail. The law should provide the same respect and protection for private email communications.

The resolution of this case will help determine the future of digital communications. But we shouldn’t have to rely on the courts to deliver Big Tech accountability. Lawmakers should prioritize legislation that requires greater transparency and prevents Big Tech from monopolizing—and controlling—this critical infrastructure.

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FBI Whistleblower Report: Bureau Is ‘Rotted at Its Core’

Republicans on the House Judiciary Committee released a report Friday detailing whistleblowers' complaints of partisan weaponization of the FBI. Pictured: U.S. Attorney General Merrick Garland and FBI Director Christopher Wray on Oct. 24 in Washington, D.C. (Photo: Kevin Dietsch/Getty Images)

Republican staff at the House Judiciary Committee released a report Friday detailing the claims of “a multitude of whistleblowers” at the Federal Bureau of Investigation, who alleged that the FBI is abusing its law enforcement authority to prosecute political opponents, artificially inflate the amount of “hate” in the country, and removing from its ranks staff who refuse to parrot the leftist agenda.

“Under the malevolent leadership of [Attorney General] Merrick Garland,” the report charges, “the FBI and Justice Department has been a willing participant of the Biden Administration’s weaponization of law enforcement.”

“President [Joe] Biden has shown no problem in labeling his political opponents as racists, fascists, and domestic terrorists,” the report states. “The FBI under Director [Christopher] Wray has been willing to exert its law enforcement tools in a manner guided by political calculations. Whistleblowers allege that the FBI is manipulating data about domestic violent extremism to support the Biden Administration’s political agenda.”

The report cites whistleblowers and other reports, claiming that “the FBI prioritizes investigations and uses differing tactics based on political considerations—using aggressive tactics against political opponents of the Biden Administration while going softer on, or outright ignoring, allegations against the Administration’s political allies.”

According to the report, whistleblowers have described the FBI’s Washington, D.C., leadership as “rotted at its core,” with a “systemic culture of unaccountability,” and full of “rampant corruption, manipulation, and abuse.”

In response to a request for comment, the FBI sent this statement:

The FBI has testified to Congress and responded to letters from legislators on numerous occasions to provide an accurate accounting of how we do our work. The men and women of the FBI devote themselves to protecting the American people from terrorism, violent crime, cyber threats and other dangers. Put quite simply: we follow the facts without regard for politics. While outside opinions and criticism often come with the job, we will continue to follow the facts wherever they lead, do things by the book, and speak through our work.

The Republican report claims the FBI is “artificially inflating statistics about domestic violent extremism” by pressuring agents to report irrelevant incidents as violent extremism and by categorizing Jan. 6th-related investigations as separate cases, not as related to one single incident.

Republican staff claim the FBI is abusing its counterterrorism authority to investigate parents who spoke out at school board meetings. According to the report, whistleblowers explained that, after the National School Boards Association urged Biden to investigate concerned parents, the FBI opened investigations into one mother who told a school board “we are coming for you” and one dad because he “rails against the government” and “has a lot of guns.”

The report blames the FBI for protecting Hunter Biden, despite multiple reports about his lucrative foreign business dealings while his father, Joe Biden, was vice president. The report cites Meta CEO Mark Zuckerberg, who admitted that Facebook took “meaningful” steps to censor articles about Hunter Biden’s laptop following an FBI warning. This example highlights the FBI’s collaboration with Facebook and other social media platforms, which the report describes as the bureau’s “helping Big Tech to censor Americans’ political speech.”

The FBI also allowed attacks on pro-life pregnancy centers and other facilities to go on unabated while prosecuting pro-life protesters, the report adds.

The report also faults the FBI for using its authority under the Foreign Intelligence Surveillance Act to spy on American citizens, including those associated with Donald Trump’s 2016 campaign. While these incidents have been exhaustively reported, the report adds that “there is little indication the FBI has changed—or is willing to change—course.”

Whistleblowers also claimed that the FBI is culling staff who “dissent from its woke, leftist agenda,” according to the report. The bureau is seeking to “purge” FBI employees holding conservative views, they said. The report even claims the FBI took retaliatory action against at least one whistleblower who spoke out.

Several whistleblowers claimed that the FBI is taking steps toward firing employees who engaged in protected First Amendment activity on Jan. 6, 2021, according to the report. The bureau has suspended the security clearances of these staff and questioned their “Allegiance to the United States.”

“Multiple whistleblowers have disclosed how the FBI leadership is conducting a ‘purge’ of FBI employees holding conservative views,” the report states.

Finally, the Republican report faults the FBI’s “political meddling” for “dragging the criminal side [of the bureau] down,” pulling resources away from more relevant enforcement duties. One whistleblower said he was “told that child sexual abuse material investigations were no longer an FBI priority and should be referred to local law enforcement agencies.” The Republican staff call this “misprioritization” both a “dereliction of duty” and “a grave disservice to the victims of crimes that do not advance the FBI’s political agenda.”

Rep. Jim Jordan, R-Ohio, ranking member of the House Judiciary Committee, shared a page from the report, encouraging FBI staff to come forward and saying that they have a “right to speak with Congress.”

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State governments step up on abortion issue

Having returned the issue of abortion “to the people and their elected representatives” in June with a watershed opinion in Dobbs v. Jackson Women’s Health Organization, the Supreme Court paved the way for a flurry of state-level activity regulating abortion.

Since the high court issued its Dobbs opinion, 13 states have fully outlawed abortion, and multiple legal challenges are pending against other states that seek to outlaw or restrict abortion to some degree.

Overall, post-Dobbs restrictions on the procedure have led to an estimated 6% decrease in the number of abortions across the nation. That number represents more than 10,000 unborn human beings whose lives have been saved.

With midterm elections concluding Tuesday, citizens have a chance to flex their recently restored constitutional muscles on the issue of abortion.

Eager state officials have proposed all manner of restrictions on, or protection for, the procedure. Increasingly, state legislative bodies have offered up proposed amendments to their state constitutions on which voters may weigh in. These proposed amendments put to voters the question of whether their own state constitutions should recognize a right to abortion.

In California, for example, voters have a chance to vote on Proposition 1, called the Constitutional Right to Reproductive Freedom. The California Constitution guarantees a “right to privacy,” but doesn’t define what that right includes. And even though the California Supreme Court has found that this right to privacy includes the right to abortion, the proposed constitutional amendment would formalize such a “right” more explicitly.

California’s Prop 1 reads:

The state shall not deny or interfere with an individual’s reproductive freedom in their most intimate decisions, which includes their fundamental right to choose to have an abortion and their fundamental right to choose or refuse contraceptives. This section is intended to further the constitutional right to privacy guaranteed by Section 1, and the constitutional right to not be denied equal protection guaranteed by Section 7. Nothing herein narrows or limits the right to privacy or equal protection.

In Kentucky, midterm voters are considering a proposed amendment to the state constitution that would do precisely the opposite. It states: “Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?”

Voters’ approval of the constitutional amendment would ensure that Kentucky’s existing laws on abortion—namely the Human Life Protection Act, the Heartbeat Law, and other pro-life measures—are largely insulated from legal challenges under state law.

Approval of Kentucky’s amendment also would prevent citizens’ tax dollars from being used to fund abortions. It simultaneously would tie the hands of activist judges who otherwise might have used the existing terms of the Kentucky Constitution to “creatively” confer a right to abortion, regardless of any pro-life legislation passed by the Kentucky Legislature.

But what have Kentucky courts used as guiding principles when interpreting the commonwealth’s constitution?

The U.S. Supreme Court was bound by the terms of the U.S. Constitution in conjunction with the nation’s history and tradition on regulating abortion when faced with the question of whether to overturn Roe v. Wade, its 1973 decision legalizing abortion on demand. In the same way, the Kentucky Supreme Court in the past also has looked to the text of the commonwealth’s governing document and history on the issue.

As early as 1879—long before Roe was even a glimmer in Supreme Court Justice Harry Blackmun’s eye—the Kentucky Court of Appeals determined there was no constitutional right to abortion in the Kentucky Constitution. In that case, Mitchell v. Commonwealth, the court found that the commonwealth’s constitution never had recognized a right to abortion, and that the Kentucky General Assembly could pass laws to protect a child at any point of gestation.

Not long after the Supreme Court’s ruling in Roe v. Wade, and despite the high court’s creation of a “constitutional” right to abortion, the Kentucky General Assembly stuck to its guns in protecting unborn life. In 1982, its legislative findings included:

[I]t is in the interest of the people of the Commonwealth of Kentucky that every precaution be taken to insure the protection of every viable unborn child being aborted … and if … relevant judicial decisions are reversed or modified, the declared policy of this Commonwealth to recognize and to protect the lives of all human beings regardless of their degree of biological development shall be fully restored.

Later, in 2018, the Kentucky Supreme Court in Commonwealth v. Claycomb reiterated principles of constitutional construction when determining that a law called the Medical Review Panel Act was unconstitutional under Section 14 of the Kentucky Constitution. In writing for the majority, Chief Justice John Minton wrote:

The basic rule … is to interpret a constitutional provision according to what was said and not what might have been said; according to what was included and not what might have been included. Neither legislatures nor courts have the right to add to or take from the simple words and meaning of the Constitution … in interpreting Constitutions the words employed therein should be given the meaning and significance that they possessed at the time they were employed.

Most recently, in a 2019 case, Westerfield v. Ward, the Kentucky Supreme Court was faced with interpreting a proposed amendment to the commonwealth’s constitution that was slated for publication on the upcoming election ballot.

In determining that the proposed amendment was not constitutional in light of other provisions of the commonwealth’s constitution, Minton wrote: “When interpreting constitutional provisions, we look first and foremost to the express language of the provision, ‘and words must be given their plain and usual meaning.’”

Together, the effect of these principles of interpretation is clear: The express language of the commonwealth’s constitution confers no right to abortion. And Kentucky judges cannot read one into that constitution, no matter the abortion policy outcome they want.

Kentucky’s proposed constitutional amendment is an effort to avoid the commonwealth’s own version of Roe v. Wade. And, as the U.S. Supreme Court determined in Dobbs, to keep the power in the hands of the “people’s representatives” on a matter of significant importance.

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A public-private partnership formed by elite institutions and the federal government quietly eats away at the First Amendment

On Sept. 30, conservative outlet Just the News published allegations that an agency within the Department of Homeland Security helped create a shadowy public-private partnership called the Election Integrity Partnership (EIP) to censor and suppress right-of-center voices and media in the run-up to the 2020 election with the help of Big Tech.

The headline was alarming: “Outsourced censorship: Feds used private entity to target millions of social posts in 2020.” The targets of censorship, according to the article, were some of the biggest names on the right—Charlie Kirk, Sean Hannity, Gateway Pundit, Fox News, and the New York Post—whose social media posts on platforms like TikTok, Twitter, and Facebook were labeled, soft blocked, or removed. On his show, Hannity reacted to the news by alleging that the EIP created an “enemies list.” The story also charged that the government and the partnership colluded to evade First Amendment protections, and noted that each EIP partner was handsomely rewarded with millions in federal dollars after the 2020 election. Finally, the story warned, the partnership wasn’t finished—it has continued its work during the run-up to the 2022 midterm elections.

The EIP responded a week later. In a long statement, the partnership pushed back on the story and the resulting media coverage, essentially claiming that it was all heat and no light. According to the EIP, it was simply flagging election-related disinformation online, and passing it on to social media companies in order to protect the legitimacy and integrity of the 2020 vote. If conservative accounts were disproportionately targeted, according to the partnership, it was because “the vast majority of false rumors and disinformation about the 2020 election spread primarily through far-right influencers catering to Trump-voting audiences, reflecting the asymmetrical nature of the phenomenon.” The partnership also said that the social media platforms alone were responsible for determining what actions to take after the EIP shared its findings. Finally, the partnership wasn’t operating secretively, the statement said. It blogged, tweeted, and held daily webinars in the run-up to the election, and afterward wrote peer-reviewed papers and a massive 290-page after-action report.

It is difficult to assess the full details of what exactly went on, especially regarding the EIP’s underlying motives. But we do know this: You don’t have to be a conspiracy theorist to be concerned about the First Amendment implications of the EIP’s work, even as described by the EIP itself—especially with tomorrow’s elections on the line.

There is a serious argument that a partnership like the EIP violates at least the spirit, if not the letter, of the First Amendment. The idea behind the partnership, according to the EIP’s after-action report, came from four students at the Stanford Internet Observatory (SIO) who were interning at the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA). They observed that there was no agency in the federal government tasked with identifying, monitoring, and correcting election-related disinformation online. As the report itself acknowledged, a U.S. government response to domestic “election disinformation” was problematic, because it “would likely be excluded from law enforcement action under the First Amendment.” The EIP wasn’t wrong.

Government itself has only strictly limited power to restrict false information—for example, when it satisfies the specific, narrow standards for fraud, defamation, or perjury. These constitutional guardrails are wise precisely because such vague concepts as “disinformation” give officials too much enforcement discretion, which they predictably use to target critical, dissenting, and minority voices. Denying government the power to implement such an inherently manipulable concept as “disinformation” honors the cardinal First Amendment principle of “viewpoint neutrality,” which ensures that the general power to discern what’s true and false belongs to the American people.

In an apparent attempt to avoid this constitutional problem, the EIP was created “in consultation with CISA” on July 26, 2020—100 days out from the Nov. 3 national election. The groups within the EIP seemed almost designed to make conservative heads explode. Two research groups housed at liberal universities? Check. A New York-based social media analytics firm? Check. A digital research lab connected to a Washington, D.C.-based establishment think tank? Check.

The EIP then set up a ticketing system whereby private stakeholders, like the NAACP or the Democratic National Committee, could submit “tickets,” or reports, flagging possible examples of disinformation. While most tickets came from private stakeholders and EIP analysts, at least one government agency submitted tickets. According to the partnership, CISA did not submit any tickets, but 5% of tickets came from the State Department’s Global Engagement Center.

When the EIP decided a ticket qualified as disinformation and sent it to the social media platforms, the companies took notice. According to the EIP after-action report, the social media giants responded at least 75% of the time to the tickets in which they were tagged. Thirty-five percent of the URLs the partnership shared with Facebook, Instagram, Twitter, TikTok, and YouTube “were either labeled, removed, or soft blocked,” reported the EIP. The tech platforms disproportionately targeted large accounts supporting then-President Donald Trump, which, according to the partnership, were claiming the election was or would be stolen. These “repeat spreaders” included the actor James Woods, Gateway Pundit, Donald Trump Jr., Donald Trump, Charlie Kirk, Mark Levin, and Breitbart News, among others.

The government’s role in forming EIP and implementing its ticketing system, as well as social media companies’ high level of responsiveness to EIP’s tickets, suggest that the government may be sharing its power with ostensibly private actors to such an extent that the latter are effectively functioning as government agents. Indeed, the U.S. Supreme Court has sensibly recognized that when certain actions are undertaken by private sector actors that are “entangled” with the government, such actions are subject to the same constitutional limits that apply to the government. Likewise, the court has held that when government pressures private actors to engage in censorship, that too violates the First Amendment. The involvement of the DHS and State Department in the project does make one wonder how much pressure the social media companies felt to address the tickets that EIP sent to them.

As of now, it seems the federal government is at least approaching that constitutional entanglement line. Recent reporting from The Intercept places the EIP within a larger, troubling context. Lee Fang and Ken Klippenstein detail how the DHS, originally created in the aftermath of 9/11 to focus on terrorist threats emanating from abroad, has been expanding and altering its mission to address what it considers domestic threats, including a broad concept of information that it deems potentially dangerous; moreover, in seeking to suppress such information, DHS has often collaborated with powerful tech companies without sufficient oversight from Congress. The agency’s ill-fated proposal for a Disinformation Governance Board in April was only the most well-known and widely ridiculed instance of bureaucratic proliferation and mission creep that has accelerated under both the Trump and Biden administrations.

In their zeal to play gatekeeper, a group of elite institutions, partnering with government agencies, is picking and choosing what Americans see online. Whatever you want to call that, it isn’t democracy.

First Amendment and broader culture-of-free-speech concerns aren’t the only problem presented by the EIP, however. Consider the issue of bias. In December 2021, seven members of the EIP published an article in the Journal of Quantitative Description. The article focused on the social media accounts cited above, which the authors argue acted as superspreaders of election disinformation, helping sow doubt about the integrity and legitimacy of the 2020 election. The authors admit that the monitoring process for identifying and flagging pieces of disinformation likely “reflect biases of individual analysts.” These analysts, as Stanford Internet Observatory’s Renée DiResta explains in a CISA video, were “trained student researchers” from Stanford.

That’s a salutary admission, but one sentence later the authors wave it away. “Though the organizers did not record the political orientations of the Tier 1 analysts,” the EIP authors write, “our experience working with them suggests that diverse political orientations were present and that the overall group skewed towards the center left.” For many who are skeptical about the EIP already, this might only induce resigned laughter, since they likely perceive Stanford students as being far to the left of the average American. Imagine if the federal government helped form a similar partnership that employed students from Liberty University to flag disinformation online. The reaction would be largely the same, only coming from the opposite side.

According to the partnership, its primary goal is to defend American democracy, particularly the integrity and legitimacy of our electoral system. These are laudable, worthwhile goals, but the way the EIP went about pursuing them demonstrates a paternalistic lack of faith in the intelligence of ordinary Americans. In their zeal to play gatekeeper, a group of elite institutions, partnering with government agencies, is picking and choosing what Americans see online. Whatever you want to call that, it isn’t democracy.

As the Supreme Court said, an Orwellian “Ministry of Truth” is antithetical not only to individual liberty, but also to the entire idea of self-government. Accordingly, the court has stressed, our system is designed to discover truth “out of a multitude of tongues, [rather] than through any kind of authoritative selection.” It’s difficult for that process to play out unencumbered when the government itself has a policy of telling proxies whose tongues to cut out.

Transparency, arguably absolute transparency, is necessary to counter the free speech dangers that the EIP poses by policing inherently slippery concepts like“misinformation” and “disinformation.” The partnership does seem to understand the value of showing its cards. In its statement, the EIP stated that it “has always operated openly and transparently” and that any “insinuation that information about our operations or findings were secret up to this point is disproven by the two years of free, public content we have created.”

It would be more accurate to say that the EIP operated while hidden in plain sight. An obscure partnership between little-known research centers and ABC government agencies may be technically transparent, but that matters little if the vast majority of the population has no idea the arrangement exists. A large portion of the blame goes to the popular and resource-rich media outlets that weren’t interested in covering such developments for readers and viewers until a comparatively small conservative website did it for them.

Since the EIP was formed to exchange information between its partners in real time, it presumably could create a web tool to allow interested citizens and organizations to also watch it work in real time and provide some sort of due process for accounts flagged for disinformation. And if the partnership’s existence continues beyond the midterms, especially in the runup to the 2024 election, it should prioritize recruiting analysts who represent the ideological and political diversity of the American electorate and provide that data to the public.

With the potential for abuse so grave, blog posts, Twitter threads, and downloadable after-action reports won’t cut it. Radical transparency is the least voters should expect of such a partnership at least partially funded by taxpayer money and involving elements of the national security bureaucracy. Such a commitment would go a long way toward demonstrating to the public that the EIP has nothing to hide—and is glad to have the American people watch it like a hawk.

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My other blogs. Main ones below:

http://dissectleft.blogspot.com (DISSECTING LEFTISM)

http://edwatch.blogspot.com (EDUCATION WATCH)

http://antigreen.blogspot.com (GREENIE WATCH)

http://australian-politics.blogspot.com (AUSTRALIAN POLITICS)

http://snorphty.blogspot.com/ (TONGUE-TIED)

http://jonjayray.com/blogall.html More blogs

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