The Internet, The Former Offender, And the New Cyber-Gestapo
Derek “The Fallen One” Logue
June 23, 2008, Updated Aug. 20, 2013

"
Although the act is intended to promote the legitimate and compelling state interest of protecting
minors from internet predators, the near total ban on Internet access imposed by the act unreasonably
restricts many ordinary activities that have become important to everyday life in today’s world
." -- US
District Court Judge Brian Jackson, in a decision declaring Louisiana's internet ban unconstitutional.

Introduction

The fight for our rights to use the Internet for support, treatment, education, and activism are under attack from
John McCain and his contemporaries using former sex offenders to gain votes. Two measures are before our
leaders-- one in state, and one in Federal-- which would restrict the rights of former offenders to use the Internet for
legitimate purposes.  The purpose of this guide is to analyze the dangers of the new wave of legislation designed to
silence our voices, and develop an effective counterargument to these laws.

Keeping the Internet Devoid of Sexual Predators [KIDS] Act of 2008 [S-431-ES] -- The current revision as
passed by the Senate

Section 1: Short Title

Section 2: Registration of Online Identifiers of Sex Offenders:

Amends the Sex Offender Registration and Notification Act (SORNA) requiring offenders to register “any electronic
mail address or other designation the sex offender uses or will use for self identification or routing in Internet
communication or posting (I.e., screen names). Failure to register email addresses is punishable by fines and up to
10 years in prison

Section 3: Checking of Online Identifiers Against SO Registration Information:

Allows for the creation of a database for use by online “social networking sites;” requires social network sites to
petition for its use; the AG has powers to suspend or terminate service; the list is not to be made public; However,
the social networking sites have immunity against civil suits, unless the information is used for illegal, malicious, or
unauthorized purpose; Only a select few workers will have access to the site

Section 4: Definitions

Section 5: Criminalization of Age Misrepresentation in Connection with Online Solicitation of a Minor

Makes lying about your age to pick up a minor an offense punishable by up to 20 years

Section 6: Knowingly accessing child pornography with the intent to view child pornography

Section 7: Clarifying Ban of Child Pornography

Georgia Senate Bill 474

Georgia SB 474 takes the net law a step further, requiring former offenders to register their PASSWORDS as well.

Section 1: Develop Internet safety educational program for youth

Section 2: Requires ISPs to provide Internet filtering and monitoring (read: spy ware) software to control Internet
activity of minors; failure to do so is a misdemeanor

Section 3: Adds Internet definitions in the “Definitions” section of the Georgia Code

Section 4: Requires former offenders to register if they go to school and location, email addresses, user names,
and USER PASSWORDS (SECTION 4-K), and the nature of the crime committed

Section 5: Probationers/ parolees prohibited from contact with victim or loitering around any place where minors
congregate; must wear a GPS device; required to provide Internet usage history; required to allow unannounced
inspection or taking of computer or storage equipment; cannot run for office for the board of education

Section 6: Act becomes effective July 1, 2008; Sections 3 and 4 effective January 1, 2009

Section 7: All acts in conflict with this Act are repealed

Concern: This information might be available under the Open Records Act to anyone who asks, putting registered
sex offenders at risk of identity theft if they use banking or other commercial services.  (Mike Billips, “Internet
Predator Bill Nears Passage.” Macon GA Telegraph, April 5, 2008)

Biden/ McCain passes the PROTECT Act!
[http://thomas.loc.gov/cgi-bin/bdquery/z?d110:s.01738:].

Essentially, the PROTECT Act is a merging of Biden's PROTECT Act and McCain's SAFE Act. A decent synopsis of
the process can be found here:

http://
www.cybertelecom.org/cda/protect.htm

Currently I see nothing directly related to having to register e-mail identifiers. That is included in the KIDS Act, which
was signed into law October 2008 [http://blog.wired.com/27bstroke6/2008/10/mccains-sex-off.html]. However, the
PROTECT Act is worth mentioning because Biden claimed they knew the location of "400,000 Internet predators;"
the PROTECT Act will grant over $300 MILLION to combat child pornography. That is, if there IS any money left out
of that $700 Billion bailout. Notice the PROTECT Act essentially places money aside just to "study" the problem; as
noted in the above article, it is a common euphemism for "congress doesn't know what it is doing."

Precursor to the KIDS Act: Child Online Protection Act (COPA)-- Senator John McCain has been pushing this
since 1998.

Issues: Required ISPs to block sites suspected of child porn and provide filtering software; sites could be blocked on
the mere use of a word like “sex;” standard was the term “Harmful to Minors,” which was defined as material judged
by “contemporary community standards” as appealing to the “prurient interest” and showed sex acts or nudity; much
broader definition than the “obscenity” standard

See:
http://
en.wikipedia.org/wiki/Communications_Decency_Act
http://en.wikipedia.org/wiki/Child_Online_Protection_Act

Litigation against COPA:

Ashcroft v. ACLU, 542 US 656 (2004): SCOTUS upheld an injunction against enforcing COPA on grounds it likely
violates the Constitution (1st Amendment) and was not narrowly tailored to serve its purpose (Ironically, it was
written to narrow the Communication Decency Act, which SCOTUS struck down in ACLU v. Reno, 521 US 844
[1997]).

ACLU v. Gonzalez, No. 98-5591 (US Dist. Ct. ED Penn. [2007]): COPA facially violates the First and Fifth
Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not
narrowly tailored to Congress’ compelling interest; (3) defendant has failed to meet his burden of showing that
COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) COPA is
impermissibly vague and overbroad.

Research on Internet Sex Crimes:

Youth Internet Safety Survey (YISS)-- 2000

19% experienced an “unwanted sexual solicitation”
3% experienced an “aggressive solicitation” involving a request for offline contact
0% (none!) of the solicitations led to actual sexual contact or assault

Of the solicitations:

24% of solicitations were made by those over 18
48% of solicitations were made by people UNDER 18
28% were of unknown age
66% were from males
25% were from females
75% reported it as “not distressing”

From: Janis Wolak, David Finkelhor, and Kimberly J. Mitchell and Michele L. Ybarra, “
Online ‘Predatorsand their
Victims: Myths, Realities, and Implications for Prevention and Treatment” American Psychologist, February-March
2008

“The publicity about online ‘predators’ who prey on naïve children using trickery and violence is largely inaccurate.”
- p. 111

“In the N-JOV Study, only 5% of offenders pretended to be teens when they met potential victims online” - p.112

“There were an estimated 6,594 arrests nationwide for statutory rape in 2000. During about the same time period
(July 1, 2000, to June 30, 2001) federal, state, and local law enforcement agencies made an estimated 500 arrests
for Internet-initiated sex crimes, 95% of which were non-forcible… In the context of general sex crime risk, however,
these numbers suggest that Internet-initiated sex crimes account for a salient but small proportion of statutory rape
offenses and a relatively low number of the sexual offenses committed against minors overall.” - p. 114-115

Barriers to effective prevention strategies (p.115)

1. The “characterization of young people as vulnerable because of the naïveté about the internet itself is
inaccurate;” it is the older teens more at risks as they grow more independent and risk taking
2. The “characterization of young people as vulnerable because they are innocent about sex does not capture the
nature of the sexual issues that get youths into trouble online. The reality of adolescent sexual development
includes growing sexual curiosity, knowledge, and experience as youths make the transition from childhood to
adulthood”

“Aggressive solicitations do not necessarily involve sexual approaches from online molesters, and few youths who
receive such solicitations agree to meet solicitors.” - p. 116

“Posting personal information online is widely regarded as putting youths at risk for victimization by online child
molesters, but findings from the YISS-2 suggest that it is not, by itself, associated with being sexually solicited
online… It is interactive behaviors, such as conversing online with unknown people about sex (or posting
provocative photos), that more clearly crate risk.” - p. 117

My Space et al. are not being used to target victims: “[A] close perusal of media stories suggests that online
molesters have not changed their tactics as a result of the advent of social networking sites (e.g., Rawe, 2006;
Schrobsdorff, 2006). In addition, between June and October 2007, we conducted over 400 interviews with police
about Internet-related sex crimes in conjunction with a second N-JOV Study, and we have yet to find cases of sex
offenders stalking and abducting minors on the basis of information posted on social networking sites. Online
molesters do not appear to be stalking unsuspecting victims but rather continuing to seek youths who are
susceptible to seduction.” - p. 117

“Whereas posting information online, by itself, may not be as risky as some fear, there is increased risk associated
with a pattern of different kinds of potentially risky online behaviors that includes posting personal information The
pattern was identified by looking at nine online behaviors that are often deemed, or could be, risky for youths to
engage in (e.g., interacting online with unknown people, having unknown people on a buddy list, talking online to
unknown people about sex, seeking pornography online, being rude or nasty online). As the number of different
types of these behaviors increased, so did the odds of online interpersonal victimization.” - p. 118

“The widespread popularity of television shows such as To Catch a Predator reveals the public fascination with
online child molesters. The media has been quick to characterize such men as Internet or online “predators” and
pedophiles. Implicit in these characterizations is the notion that these are highly motivated and repetitive sex
offenders who have deviant sexual interests in children and predilections to abduction and violent assault. In fact,
the considerable research and theory about child molesters—on what impels them to offend, how likely they are to
have large numbers of victims or to re-offend, and whether they have violent propensities —makes it clear that child
molesters are, in reality, a diverse group that cannot be accurately characterized with one-dimensional labels.
Although there is little research specifically about online child molesters, there are indications that they occupy a
narrow range on the spectrum of the sex offender population, one that largely excludes pedophiles and violent or
sadistic offenders. - p. 118

“An important fact that supports caution in speculating about how the Internet has facilitated child molestation is that
several sex crime and abuse indicators have shown marked declines during the same period that Internet use has
been expanding. From 1990 to 2005, the number of sex abuse cases substantiated by child protective authorities
declined 51%, along with other related indicators.” - p. 121

Implications for Prevention and Public Policy (p. 121-123)

  • Avoid descriptions of the problem that characterize victims as young children or emphasize violence and
    deception
  • Be clear about why sex with underage adolescents is wrong
  • Focus prevention efforts more on adolescents and less on parents
  • Focus prevention frankly on concerns relevant to adolescents, including autonomy, romance, and sex
  • Prevention should be developmentally appropriate and an aspect of broader programs that focus on healthy
    sexual development and avoiding victimization
  • Focus more on interactive aspects of Internet use and less on posting personal information
  • Educate youths about criminal behavior and child pornography
  • Develop targeted prevention approaches for the most at-risk youth populations
  • Assess for a pattern of risky online behavior

In short, the research shows online victimization is as much a part of predator panic as stranger-danger. It is a rare
occurrence at best, and the current state of the laws are not only unnecessary, but will reinforce the “stranger
danger” Internet mentality.

Constitutional Challenges:

  • NOTE #1: Keep in mind we must reinforce the fact that Internet communications are the same as telephone,
    physical mail, or any other form of communication. It is important to emphasize this since Internet-related
    communications should be treated in the same way as the rules for any other forms of communication.
  • NOTE #2: Remember the Constitution only applies to Governmental action, not private action. Thus, these
    rules do not apply to My Space, Facebook, Google, etc., because those are private entities, NOT state
    entities. However, it could be argued that appearance of Internet names on a public registry will lead to
    private businesses organizations banning former offenders from access to the Internet or use of service, thus
    interfering with equal protection

First Amendment: Freedom of Speech, Assembly/ Petition, Association

''That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and consult for their common good, and to petition the government for a redress of
grievances.''

Violates freedom of speech and freedom of assembly. As previously noted, the predecessors of the KIDS Act were
struck down on free speech issues. In regards to the right to assembly, it can be argued that the Internet has
become the primary source of information in the former offender community; without the Internet, our movement
would be greatly hampered. As noted on my links page, there are numerous websites, blogs, and forums for former
offenders to seek help. It is also necessary because many of the features of Internet usage is becoming the
preferred method of conducting many business or even governmental transactions, from Social Security benefits to
banking to buying and selling products. Also, anyone who has registered at multiple websites knows how difficult it is
to keep the same screen name when 27,000 other people share variations of your screen name. Thus, the laws
prevent you from actively participating in a new forum because you would have to notify law enforcement of the new
changes (as noted by E-advocate, http://
sexoffenderresearch.blogspot.com/2008/05/folly-of-s-431-kids-act-of-
2008_22.html).

Relevant cases:

Lamont v. Postmaster General, 381 US 301 (1965): Found the government’s rule detaining mail from “communist”
sources until the receiver fills out a request form violated (a “limitation on the unfettered exercise of”) the First
Amendment. I would think the delays incurred while awaiting for a screen name to be registered would be similar in
nature to the facts in this case

US v. Robel, 389 US 258 (1967): The indiscriminate application of a rule barring government employees from all
types of association with Communist groups, regardless of quality and degree of membership, makes it impossible
to save the rule from “constitutional infirmity.” Considers the “right of association” a “basic” right. Claiming the law
was necessary for “national defense” does not exclude the rule from constitutional limitations [see also Home Bldg.
v. Blaisdell, 290 US 398 (1934)]

Brandenburg v. Ohio, 395 US 444 (1969): The state cannot punish mere advocacy, including those which advocate
the use of force or law violation, “except where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such violent action. One suggested protest involved registering thousands of
email addresses under your name in protest of this law, and it would fall under this court decision

NAACP v. Button, 371 US 415 (1963): The state cannot bar people from urging individuals from filing litigation or in
assisting litigation

Hague v. CIO, 307 US 496 (1939): The privilege of a group to use a public forum is relative, not absolute, making
concessions for safety and convenience, but must not be abridged or denied

Connection Distributing Co. v. Keisler, No. 06-3822 [6th Ct. (Oct 23, 2007): Struck down Section 2257 of the
Federal Recordkeeping and Label Act violated the “Overbreadth Doctrine,” finding the statute as “extremely broad”  
and the universal age-verification requirement runs afoul of the First Amendment; violation of anonymity (
http://www.
ca6.uscourts.gov/opinions.pdf/07a0430p-06.pdf)

Fourth Amendment: Protection against unreasonable searches and seizures.

E-Advocate makes a good argument regarding how email addresses are a part of your physical computer, and thus
a warrant would be needed (http://
sexoffenderresearch.blogspot.com/2008/05/folly-of-s-431-kids-act-of-2008-part-4.
html). I wish to take that analogy a step further. How about a PO Box or a safety deposit box? When we use certain
services, we are renting space. The Internet is no different: we rent space on a server to collect electronic mail. Any
case which upholds the need for a warrant in any other form of communication applies here as well. The Georgia
law is more blatantly unconstitutional because by turning over passwords, we are doing the equivalent of handing
over our PO Box and Safety Deposit Box keys without a warrant. It may be necessary in arguing the Fourth
Amendment here, you may have to explain how the Internet works ( see http://
computer.howstuffworks.com/internet-
infrastructure.htm)

Important Cases:

Katz v. US, 389 US 347 (1967): Adopted a twofold requirement; first, that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as
“reasonable.” Thus, one can reasonably assume e-mail and passwords are private.

US v. Maxwell, 45 MJ 406 (CAAF 1996):  Found that even though less secure than other forms of communication,
the expectation of e-mails remaining private meets the Katz standard; compared e-mails to regular mail and
telephone calls.

The following are the only types of valid warrantless searches: Detention short of arrest (aka, “Stop and Frisk”),
Search Incident to Arrest, vehicle or “vessel” (boat) searches, consent searches, border searches, “open fields,”
“plain view” objects, public schools, government offices, prisons and the regulation of probation, and drug testing

Fifth Amendment: Violates the right against self-incrimination.

There is actually a rather large debate regarding whether passwords or encrypted files fall under the Fourth or Fifth
Amendment. I would argue both to cover both arguments. The debate is whether a password is like a physical key
(thus a fourth amendment case) or communication (Fifth Amendment). In a way, it is both.

In Re Boucher, Case 2:06-mj-00091-jjn [US Dist. Ct. Vt. (Nov.29, 2007)]: Held that forcing a man to unlock
encrypted files compels one to incriminate himself in a criminal case, thus it violates the Fifth Amendment

Fourteenth Amendment: Due Process

“Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Due Process clause actually absorbs many of the points associated with the First Amendment, such as
freedom of speech and right of assembly; many of the cases fall under both categories. In regards to the “right of
travel,” it could be argued that the Internet is a form of “travel,” allowing us to meet in a virtual meeting place instead
of in person, noting similar in form and function to telephone conferencing or conversing by postal letter.

Fiske v. Kansas, 274 US 380 (1927): Found the “Kansas Syndicalism Act,” which criminalized any media which
promoted or encouraged any criminal activity or sabotage for political or corporate gains, violated the due process
clause-- merely engaging in activities that called for “abolishment” of a societal system does not imply the
organization is involved in criminal activity. This is important to bring up when attacked as a member of the online
community of former offenders.

E.B. v. Verniero, 119 F. 3d , rehearing denied 127 F.3d 298, cert. denied, 522 US 1110: even when punishment is
neither the actual or objective purpose of the law, civil sanctions may constitute punishment if the effects or “sting”
are harsh enough to be considered a punishment, and must be evaluated in light of importance of any legitimate
governmental interest served.

State v. Burnett (2001) 93 Ohio St. 3d 219, a law barring convicted drug offenders from entering Cincinnati’s “Over-
The-Rhine” district failed constitutional analysis because it went beyond restricting those interests associated with
illegal drug activity and restricted a substantial amount of innocent conduct, like living in an apartment, or visiting
human services. The law restricted and/or punished behavior not even linked to criminal activity; merely the act of
being in the restricted area was enough to get you arrested. Also, the restriction restricted drug offenders from
obtaining the assistance or support networks necessary for rehabilitation which was otherwise severely diminished
by the restrictions. Later upheld in
Johnson et al. v. City of Cincinnati, 2002 FED App. 0332P (6th Cir.), cert. denied,
US Supreme Court case no. 02-1452.

Summary:

Internet laws, much like their counterparts, are designed to attempt to “prevent” those rare instances of internet sex
crimes committed by former offenders; however, out of all the laws, perhaps this will be the most damning to our
cause, as it interferes with the ability of speak out in public forums and effectively run our online accounts and
businesses.

The research has shown what society believes about the nature of internet sex crimes is a myth. Adults actually
meeting teens for sex through the internet is a very rare occurrence, and most sexual solicitations have occurred
from other teens, and rarely do people lie about being adults when they do solicit teens for sex. Serious reforms
must be made to how we approach the internet sex crimes and understand how they are committed in order to show
how the latest legislative proposals are missing their mark.

The strongest argument could be made through the First (Free speech, assembly) and Fourteenth (due process)
Amendments, though the Fifth Amendment (self-incrimination) could be argued. Also, the Fourth Amendment could
be argued against the collection of e-mails and passwords in your custody, because private e-mails are expected to
have reasonable privacy, and should be argued as any other form of communication should be. Also, it should be
important to bring up the fact that laws are supposed to be narrowly tailored to prevent only those crimes from
happening. These laws are too easily circumvented; conversely, they amount to a massive burden every time we
register to a new forum whenever screen names are not available or other related issues.

For More Information:

My “Civil versus Criminal Argument” page

E-advocate’s “The Folly of the KIDS Act of 2008” commentaries

http://
sexoffenderresearch.blogspot.com/search/label/The%20Kids%20Act%20of%202008

How Stuff Works: The Internet

http://
computer.howstuffworks.com/internet-infrastructure.htm

Matthew J. Hodge, “The Fourth Amendment and Privacy Issues on the “New” Internet: Facebook.com and MySpace.
com.” Southern Illinois University Law Journal.

http://
www.law.siu.edu/research/31fallpdf/fourthamendment.pdf

UPDATE! June 25, 2008

Doe V. Prosecutors, CASE NO. 1:08-cv-0436-DFH-TAB [So. Dist. Ill, June 24, 2008)]: Held that Indiana's Internet
sex offender law, which required offenders to register and sign consent forms to allow their computers to be
searched at any time, violated the Fourth Amendment and right to privacy in relation to offenders who are NOT on
probation/ parole

UPDATE! September 25, 2008

Doe v. Shurtleff, Case No. 1:08-cv-00064-TC [No. Dist. UT, Sept. 25, 2008]: Held Utah's law requiring sex offenders
to turn over online identifiers to the police violate the registrant's First Amendment rights particularly free speech
and the right to anonymous speech; and the 14th Amendment "protects Mr. Doe's First Amendment rights from
abridgement by Utah statute." The court did not address the 4th Amendment or ex post facto because it granted
summary judgment on the aforementioned grounds.

UPDATE! Feb. 5, 2009

http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report.pdf -- New Harvard University/
State AG study finds the exact same conclusion as the earlier article "Online Predators and their Victims" article. No
surprise there, only the state AGs are in total shock.

UPDATE! Feb. 16, 2012

http://houston.cbslocal.com/2012/02/16/judge-throws-out-louisiana-facebook-ban-on-sex-offenders/ -- Federal
judge strikes Louisiana's social networking ban, stating it violated the 1st Amendment right to free speech. The law
as written was overbroad and restricts legal uses for the internet.

UPDATE! Oct. 17, 2012

Doe v. State of Nebraska, 8:09-cv-00456-RGK-CRZ [US Dist Ct NE, Oct. 17, 2012]

A US District Judge judge strikes down parts of Nebraska's Internet blanket ban on many grounds, including the
First Amendment, the Due Process Clause, Ex Post Facto, and the 4th Amendment for those convicted or removed
fropm state supervision before Jan. 1, 2010. It is noted the law was deemed punitive in nature, as those who
sponsored the law admitted the intent was punitive. Below is the sections of the law deemed unconstitutional, while
the other sections of the law were deemed Constitutional

"
Plaintiffs challenge the constitutionality—both facially and as applied—of parts of three statutes: Neb. Rev. Stat. §§
29-4006(1)(k) and (s) , 29-4006(2), and 28- 322.05 (West, Operative Jan. 1, 2010). Generally, sections 29-4006(1)
(k) and (s) require disclosure by persons required to register under the Nebraska Sex Offender Registration Act of
remote communication device identifiers, addresses, domain names, and Internet and blog sites used; section 29-
4006(2) requires registrants to consent to the search and installation of monitoring hardware and software; and
section 28-322.05 criminalizes some registrants’ use of social networking web sites, instant messaging, and chat
room services accessible by minors
."

The judge noted that the Nebraska legislature has "violently swayed from" the constitutional path, and even the
constitutional parts were "wrongheaded and counterproductive" (p.2). I the paragraph below, the judge deems this
law is punishment:

"
Fourth, and finally, these statutes are rife with other constitutional infirmities, and the blatant willingness of the
Nebraska Legislature to violate the Constitution is strong evidence of animus. These laws gut the First and Fourth
Amendment and the Due Process Clause. These statutes retroactively render sex offenders, who were sentenced
prior to the effective date of these statutes, second-class citizens. They are silenced. They are rendered insecure in
their homes. They are denied the rudiments of fair notice. In Nebraska’s “rage” and “revulsion,” they are stripped of
fundamental constitutional rights. In short, sex offenders who were sentenced prior to the enactment of these laws
are punished
."

UPDATE! STATE OF NORTH CAROLINA v. LESTER GERARD PACKINGHAM, Case No. 10 CRS 57148 (Durham
County NC, Aug. 20, 2013)

The court said the Social Networking ban in N.C. General Statute 14-202.5 "is not narrowly tailored, is vague, and
fails to target the "evil" it is intended to rectify... The statute violates the First Amendment's guarantee of free
speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court's judgment."

ReFORM Radio Episode 7: Potential problems with Internet laws

This episode reviewed the new laws that require sex offenders to register online IDs, screen names, email
addresses, and in some cases, even passwords! Internet laws are a bad idea for four main reasons:

  • Impossible to enforce -- false IDs, similar sounding screen names, etc.
  • Propagates stranger danger myth: Study finds most online "predators" aren't strangers, they get to know their
    victims, and most are in the same peer group as the victim
  • Open Records Act and the potential for Identity theft:
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