a citizen’s journal by Thomas Nephew

Drones, civil liberties, and other stuff only a white person would write about

Posted by Thomas Nephew on 28th September 2012

So Conor Friedersdorf wrote “Why I Refuse to Vote for Barack Obama” and Erik Loomis at the well known, sensible, liberal blog “Lawyers, Guns & Money” called that “An Essay Only a White Person Could Write,” explaining that Mr. Friedersdorf’s essay was “all about drones, civil liberties, and such,” which Mr. Loomis manfully admitted “Obama has indeed sucked on,” but “given that Friedersdorf probably doesn’t have to worry much about his next paycheck or be concerned about having an unwanted fetus in his body, it’s a luxury for him to be a one-issue voter on this particular issue.”

Actually, Friedersdorf raised not one, but a bunch of issues, and while yes, they mainly come back to human rights “and such,” he also says this:

Obama ran in the proud American tradition of reformers taking office when wartime excesses threatened to permanently change the nature of the country. But instead of ending those excesses, protecting civil liberties, rolling back executive power, and reasserting core American values, Obama acted contrary to his mandate. The particulars of his actions are disqualifying in themselves. But taken together, they put us on a course where policies Democrats once viewed as radical post-9/11 excesses are made permanent parts of American life.

Put a little more bluntly, by now you know you can’t really believe a word Obama says, which seems like a fairly substantial “meta-issue” to add to the little bitty human rights ones.

Give me some examples, you say?  Well, going to war in Libya without a declaration of war, for one.  In his otherwise excellent post “Is It Moral for Lefties to Vote for Obama?” Henry Farrell waves this one off, but he shouldn’t; Obama expressly said in the 2008 campaign that he wouldn’t do that,* a lot of people believed him, it mattered because lots of Americans wanted some pretty high barriers between us and the next unnecessary war, and (foolishly, it turned out) hoped Obama would be better than rivals such as, say, Hillary Clinton in this respect.

Just as Obama seemed to promise a less wartorn future, he also seemed to herald a future unsullied by the ethnic witchhunts of the Bush years.  As early as 2004, in his famous convention keynote speech, he warmed my heart and others by saying, “If there’s an Arab American family being rounded up without benefit of an attorney or due process, that threatens my civil liberties”; he returned to the theme again in his inaugural speech: “As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience’ sake.”

But give them up he did — and not just in some “Whereverstan” halfway around the world, but right here.  Among the top examples:

(1) With the help and encouragement of the CIA, the New York Police Department conducted blatantly racist, unconstitutional, unfounded surveillance of entire Muslim-American communities — without finding a single terrorist, though they did manage to photograph some suspicious child care centers.

(2) There’s a deeply disturbing pattern of “preemptive prosecutions” of Muslim-Americans, a practice in which young Muslim-American males are coaxed and baited into considering wrongdoing, are merely arguably in the process of doing so, or have simply found themselves in the crosshairs of some overzealous prosecutor.  I attended an event last January in which the desperate families of such men spoke up on behalf of young men like Ziyad Yaghi, arrested, prosecuted, and sent to prison for decades for what amounted to loose talk and paintball practice:  32 years in Supermax prison.  Or like Ahmed Abu Ali, for studying Islam in Riyadh and having a terrorist “confession” beaten out of him by Saudi police: life sentence in a Supermax prison.

(3) Meanwhile, another Muslim-American, Tarek Mehanna, was sentenced to 17.5 years in a Supermax prison for… wait for it… simply translating a document written by Al Qaeda members from Arabic to English.  The case led ACLU’s Nancy Murray to write, “It’s official. There is a Muslim exemption to the First Amendment.

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Their urge to betray — and ours

Posted by Thomas Nephew on 24th March 2011

Until recently, Peter Benjamin was the chairman of the Washington, D.C. area Metro transit system’s Board of Directors. A former mayor of Garrett Park, he brought an avuncular personality and long experience with Metro affairs to the table. While in correspondence with us about the bag search issue I’ve written about before, he dismissed some of our assertions about the program’s drawbacks — for example, he didn’t believe it would cause much decline in ridership. But he seemed to take seriously the civil liberties issues involved.

Still, sometimes I think if I had a dollar for every time I’ve heard or read “I’m a supporter of the ACLU, but…” I could afford the richer, more refined lifestyle I truly deserve.

And sure enough, when push came to shove at a February 10 discussion of the bag search issue, Mr. Benjamin delivered what may be the new low standard in that genre. Beginning with the heart-sinking words “I am a long term member of the American Civil Liberties Union. Many of my friends consider me a civil liberties nut,” Benjamin was giving the lie to those words within roughly twenty seconds. Even though asserting that the rights we have as citizens are “why we are the great country that we are” and personally believing that “bag checks are a violation of those rights, and …the beginning of a process that moves towards us having fewer and fewer and fewer of those rights,” Mr. Benjamin continued:

And if this decision were only for me, and only about me, I would say I personally am willing to take the risk of potentially having somebody get into the system and blow something up and I would be one of the victims, and I would balance that against my rights and say my rights are much more important. […]

However, I’m also a member of this board, and I was sworn to protect the safety and the security of the people who ride our system. And I don’t know how I as an individual with good conscience could allow somebody to get into our system and cause an explosion and know that somehow or another I contributed to that by overruling the best judgments of our chief executive officer and the professionals who understand this process. […]

But I don’t know that I can be in a position of saying that I have got the ability, given the responsibility that is given to me as an individual and as a member of this board to protect our riders, to say that they should take the same risk that perhaps I would be willing to take. And as long as I have to carry out that responsibility, I think I need to defer to those who believe that they understand better this issue. It’s one that I do very reluctantly, but it’s one that I do after very, very careful thought. And I think that’s the balance that each of needs to make as we consider this issue.”

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The TSA scanner controversy: let’s be careful what we wish for

Posted by Thomas Nephew on 24th November 2010

The ‘Don’t Touch My Junk’ video. Mr. Tyner’s account is here.

The TSA’s recent decision to require full body scans of passengers — or require those turning down the scan to submit to an aggressive search — has erupted as one of the biggest stories since the election, and certainly the biggest story this Thanksgiving week.

Various groups from FireDogLake to the ACLU are disseminating “know your rights” materials, and an “Opt Out Day” movement is bidding to slow air travel security lines to a standstill by opting for the slower, more personnel-intensive pat-down.  Meanwhile humorists are having a field day with it.*

But two diametrically opposite Washington Post columnists both get at an underlying problem with all of this: what’s your alternative?  Liberal stalwart Eugene Robinson puts it this way:

What the critics really mean is not that the TSA should let underwear bombers board planes. What they’re saying is: Don’t search me, and don’t search my grandmother. Just search the potential terrorists.

In other words, they want profiling. That’s a seductive idea, I suppose, if you don’t spend a lot of time worrying about civil liberties. But it couldn’t possibly work. Our terrorist enemies may be evil, but they’re not stupid.

At the other end of the spectrum, neo-con stalwart Charles Krauthammer agrees — it’s just that he thinks profiling is a good thing:

…everyone knows that the entire apparatus of the security line is a national homage to political correctness. […] This has nothing to do with safety – 95 percent of these inspections, searches, shoe removals and pat-downs are ridiculously unnecessary. The only reason we continue to do this is that people are too cowed to even question the absurd taboo against profiling – when the profile of the airline attacker is narrow, concrete, uniquely definable and universally known. So instead of seeking out terrorists, we seek out tubes of gel in stroller pouches.

Expect to hear much, much more use of the word “Israelification” as the debate about scanning continues.  Israel doesn’t use the devices at all and hasn’t suffered an airline attack in ages.  Instead, Israelis rely on, well, profiling to get the job done.  Israeli security expert Rafi Sela explains to Cathal Kelly of The Star:

“The first layer of actual security that greets travellers at Tel Aviv’s Ben Gurion International Airport is a roadside check. All drivers are stopped and asked two questions: How are you? Where are you coming from? “Two benign questions. The questions aren’t important. The way people act when they answer them is,” Sela said. Officers are looking for nervousness or other signs of “distress” — behavioural profiling. Sela rejects the argument that profiling is discriminatory. “The word ‘profiling’ is a political invention by people who don’t want to do security,” he said. “To us, it doesn’t matter if he’s black, white, young or old. It’s just his behaviour. So what kind of privacy am I really stepping on when I’m doing this?”

That depends what’s done  and how — and it’s mainly equal treatment and reasonable basis for suspicion that is the concern, not privacy per se.  If Israeli security meet those concerns, that’s great, but it’s reasonable to wonder whether we’d ever hear otherwise.

Much is being made of a left-right civil liberties alliance around this issue, with the ACLU, Ron Paul, liberal superblogger Jane Hamsher, and Charles Krauthammer all criticizing or mocking the TSA’s invasive procedures. But each of these groups and people start with very different assumptions, and are likely to draw different conclusions about how to address airline security.  I think the “mosque at Ground Zero” controversy shows there’s a great deal of support for considering Muslim-Americans guilty until proven innocent.

Don’t get me wrong: I mock the airline security arrangements, too.  They’re largely “security theater” designed, at best, to catch very, very stupid terrorists — while accustoming Americans to ever more invasive security procedures.  So I welcome the protests — I just wish many of the same people would spend as much time on torture accountability, or peace activism, as they do in weighing the cost of infinitesimal radiation effects against similarly infinitesimal security gains.

* My favorite so far: Tom Tomorrow, who has a Mr. Cleaver type affirm that “I fly with confidence, knowing that carry-on toiletries are limited to multiple SMALL bottles rather than a single LARGE bottle!”  Mrs. Cleaver agrees, “You’d have to be some kind of terrorist MASTERMIND to figure out a way around THAT!”

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Wow – $986 and counting for Feingold!

Posted by Thomas Nephew on 8th October 2010

As I write this, we’ve raised $986 for Senator Russ Feingold’s re-election campaign — just $14 shy of our goal of $1000. Way to go, “Get FISA Right” supporters! Nearly two dozen of you have stepped up with generous donations — thank you all! For those who haven’t — please support Russ Feingold now!

By adding different “refcode” tags to the different email appeals and blog links, we’re able to see where the donation clicks are happening. Of the 23 donations so far, about one third were done via the mass e-mailing to “MyBarackObama” lists, another third happened via links at this blog (either in the post or the ‘widget’ at the upper right corner), and the remainder have come from untagged links or other miscellaneous sources. The lesson seems to be that everything can work, but it may work best when it’s synergistic and simultaneous — it seemed to me that donation pace accelerated during the day yesterday, perhaps as multiple reminders showed up on people’s computer screens. …So get ready for another blitz. Support Russ Feingold now!

Enough on fundraising minutiae — how’s the Wisconsin campaign going? Unfortunately, the most recent polls I could find (October 1) suggested the race was getting tougher for Feingold, with Johnson if anything widening his lead. At the Huffington Post, Mark Blumenthal writes: “The trend in Johnson’s favor since the summer is hard to miss. Our trend line estimate now puts Johnson ahead by nearly 10 points (52.9% to 43.1%).” On the other hand, the Feingold campaign has cited internal polling showing the race is virtually tied, and Feingold has gone on the air with an ad accusing Johnson’s team of ‘excessive celebration.’

Whatever the case may be, it’s important for us to not let dismay at poll numbers turn into inaction, and thereby turn those numbers into a self-fulfilling prophecy of defeat. Support Russ Feingold now! Let’s go ahead and do what needs to be done so Feingold can keep fighting the good fight in Wisconsin — while his opponent hides from view. The Wisconsin Journal-Sentinel’s Don Walker reports (October 7):

Turn on the television or listen to the radio, and Republican Ron Johnson is everywhere. Finding him on the campaign trail can be a little more difficult. […] Aside from carefully scripted campaign events, it is hard for the public to get information about his appearances before groups and organizations. “We don’t receive any advance notifications of his travels or appointments,” said Stewart Rieckman, general manager and executive editor of the Oshkosh Northwestern, Johnson’s hometown newspaper. The Associated Press says the same thing. The Wisconsin Newspaper Association also inquired about a campaign schedule for member newspapers, but the Johnson campaign has not responded, according to Beth Bennett, the group’s executive director. Last Sunday, the Northwestern published a profile about Johnson. Rieckman said Johnson did not respond to multiple requests for an interview for the story. “This is the strategy,” Rieckman said. “Shield him from the press. Keep him under the radar.”

Walker goes on to attribute that to the advent of online campaigning. Personally, I think “Citizens United” and a tidal wave of anonymously sourced advertising has more to do with it. Johnson doesn’t show himself because he doesn’t need to show himself. When he does, it even embarrasses some conservative spectators, as at a grassroots “vetting” event where Johnson was asked whether he supported the Patriot Act. Johnson’s response:

…I’ll put it this way: So much of the Patriot Act exists in law, and they just put it within that law. I certainly share the concerns of civil liberties. Now if you have Barack Obama in charge versus George Bush—I wasn’t overly concerned with George Bush in power. I’m a little more concerned about the Patriot Act when you have Barack Obama. […] Our nation was at risk. When you’re at risk by things like international terrorism and stuff, you have to react to that. And you sometimes have to give up a little bit. But again, I like the fact that it should be of a temporary nature and be something for renewal. …

“pompadour”‘s response shows that civil liberties concerns aren’t limited to the left:

Here’s a tip for you, Ron: A law that compromises civil liberties is problematic no matter who’s in power. […] That[Johnson]’s comfortable with the Patriot Act in one administration’s hands but not another—and that he’d keep it around anyway—demonstrates how far from the Constitution Johnson’s actually standing. He doesn’t grasp the very real danger that lies in passing and growing accustomed to any law that grants government unconstitutional powers over the People.

(Emphasis in original.) Couldn’t have said it better myself. Support Russ Feingold now!

[crossposted to “Get FISA Right” blog]
UPDATE, 1pm: $1002, from 24 donors!!! This is now one of the most successful fundraising drives for Russ Feingold on ActBlue — we’re currently in 9th place for total dollars raised and 11th for number of donors. Thanks to everyone who has helped and to everyone who has donated! Let’s run up the score for Russ Feingold!

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Civil Liberties

Posted by Thomas Nephew on 25th September 2010

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Governor, Maryland State Police: “we’ll handle this”

Posted by Thomas Nephew on 10th March 2009

ACLU of MarylandLegislative efforts to prevent a repeat of the infamous Maryland State Police spying scandal are coming to a head this week.  Naturally, there are competing bills, and the founding fathers wouldn’t be surprised at how they compare — Governor O’Malley’s preferred bill (HB 311/SB266) stands for “we’ll handle this from here,” while the bill by progressive legislators like State Senator Jamie Raskin and Delegate Sheila Hixson (HB 182/SB256) stands for “no you won’t.”

While the Frosh/O’Malley bill would be better than nothing, it leans dangerously far in the direction of permitting a good deal of what occurred during Maryland State Police’s “amok years” in 2005 and 2006,* and in leaving the door as widely ajar as possible for as much future covert surveillance as possible, all under the catchall term “legitimate law enforcement.” For instance:

(D) The Department shall:
(1) conduct all investigations involving First Amendment activities for a legitimate law enforcement objective […]

(F) An investigation involving First Amendment activities shall be terminated when logistical leads have been exhausted and no legitimate law enforcement purpose justifies the continuance of the investigation. […]

(K) Nothing in this section may be construed to prohibit a Department employee, in the course of the employee’s duties, from visiting any place… that is open to the general public… if the Department employee has a legitimate law enforcement objective.

That might not sound so bad until you realize that what’s legitimate and what isn’t is precisely what was and is at issue — and that it remains completely undefined in this proposed legislation. The Baltimore Sun reported that State Senator Jamie Raskin, by contrast, rightly believes that police need an “explicit guide,” adding:

“Having them write their own rules is not the solution,” Raskin said. “That was the problem.”

Indeed, even “writing their own rules” is being generous — the O’Malley bill doesn’t even seem to require explicit State Police revised rulemakings, settling instead for vague directives about how it might go about its business. Raskin’s bill is better from start to finish, providing specific descriptions of covert surveillance, and requiring specific actions whenever covert surveillance of “protest or advocacy entities” or individuals is envisioned.  To wit,  the State Police chief would have to make “a written finding, including specific factual determinations… that the use of the covert technique is justified because (1) a reasonable, articulable suspicion of a present or planned violation of the law; and (2) a less intrusive method  is not likely to yield satisfactory results .”

As the ACLU of Maryland writes — in a form e-mail you can add your name and thoughts to

It is disturbing that the Administration is promoting a bill (HB 311/ SB 266) that fails in numerous ways to set the necessary standards to protect the First Amendment while opposing legislation that does establish strong standards, HB182/SB256. In fact, the Administration bill would actually condone some of the worst spying that has occurred.

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Posted by Thomas Nephew on 2nd March 2009

A forum about the civil liberties implications of a proposed license plate scanner system (announced here, on community listservs, and on fliers) was held in Takoma Park on Wednesday, February 25, 2009.  A video of that forum was recorded and uploaded by my friend Michelle Bailey (“Takoma Videotaping“).

Forum participants included:

I’ve compiled a draft transcript of the forum.  The times there (and above) indicate the beginning of the speaker’s comments. A Q&A session began at around 42:23.

Takoma Park City Council member Terry Seamens, Public Safety Committee chair Chuck Thomas, and Takoma/Silver Spring Voice publisher/editor Eric Bond were in the audience, as were Takoma Park Police Department’s Chief Ronald Ricucci and Captain Edward Coursey.

Other resources for this forum:

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A forum on license plate scanners

Posted by Thomas Nephew on 27th February 2009

The panel

From the left: me, Sharon Bradford Franklin, senior
counsel at the Constitution Project, David Zirin
(The Nation, Campaign against the Death Penalty),
Johnny Barnes, executive director of the National
Capital Area ACLU.
Originally uploaded by Thomas Nephew
For a slideshow of all forum photos, click here.
[All photos are by Madeleine Nephew
— thank you, Maddie!]

As advertised, I was joined by Sharon Franklin, David Zirin, and Johnny Barnes on Wednesday evening for a forum about the TPPD license plate scanner proposal.  (For background, see my prior posts on this issue or this resource page.)  [UPDATE – video here] [UPDATE – transcript here]

I thank each of them very much again for coming; their discussions were on point and helpful, as was a lively question and answer period with the audience, which included one councilmember, a public safety committee chair, and — by advance request  — Chief Ricucci and Captain Coursey from the police department.

My publicity efforts were not as successful as I’d have liked, but both local press and friends were on hand; my friend Michelle videotaped the proceedings as did the ACLU; assuming there aren’t technical difficulties, that will eventually be online for others to view for themselves.

I prepared some introductory remarks.  An excerpt:

…So far, we have had an upside down process: a grant application for a device before a community decision to seek one, an agency drafting policy after the money is in hand rather than a legislative body doing so before, all before consideration of alternatives.

Some say I’m making “much ado about nothing.” I disagree, and I think after tonight many of you will as well. A decision to subject ourselves to automated surveillance ought to be a very, very hard decision, not an easy one. I think it moots the 4th Amendment and chills freedom of speech and of assembly — especially in a permissive legal environment where we will have little control or even knowledge of how that surveillance is expanded, reused, or shared with federal agencies armed with “National Security Letters.” Even if approved — as I personally hope it will not be — hard questions would remain: when and where to deploy it, which wanted tag databases to download, what kind of safeguards to set up and who will run them, what penalties to impose if those safeguards are violated.

We in Takoma Park do not need to look to what’s merely permissible to police departments. We can also say how we want our community to be, and what safeguards on our rights we will insist on.

The forum produced a few new points of specific information from my perspective.  First, Captain Coursey noted that the city attorney was looking into the question of whether data collected in this fashion could be compelled to be divulged to other agencies.

Second, Chief Ricucci and Captain Coursey appeared to me to be saying that (a) the grant application did not request funding for so-called “back office” hardware and software that would facilitate the reanalysis of stored data, and (b) that they were thereby saying they did not envision doing so.

While that was comforting to me, Captain Coursey also clearly wanted the door kept open for that, pleading for no “rush to judgment” on that score.  Also, the lack of dedicated funding for storage isn’t all that telling.  As the TPPD’s own press release last December stated, “50,000 and 60,000 plate reads equal one gigabyte of hard drive space.” Assuming the interface with the squad car device can be bridged, off-the-shelf PCs could store millions of images; assuming the scanned image tag/time/location records can be downloaded as well, even more simple data records could be stored.  The software requirements are probably not insurmountable either; a simple file/directory system might do, or records could be stored in a conventional database.

But given the open, frank, and cooperative impression both officers made on me and the rest of the audience, perhaps both the press release and the worksession discussion of storage and reanalysis were more about capabilities than firm intentions.  I’m willing to believe they don’t seek this, and that they can support an explicit “no storage” provision by City Council for the device.
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Six questions about license plate scanners

Posted by Thomas Nephew on 16th February 2009

On the neighborhood listserv, a DC police officer wrote in with factual information about how he uses a scanner in his work.  As I wrote him,

Thanks very much, [sir], for describing how the scanner / tag reader works: plates encountered by your car’s tag reader are compared to an onboard database of wanted license plates. It’s also good to know that matches are double-checked in the way you describe. Takoma Park police should no doubt do as DC police do in those respects if the city authorizes the system.

But your explanation doesn’t address some of the key civil liberties issues. Among the big questions (for me, at least) are:

(1) whether the system is always on or whether you turn it on only when you suspect a car is stolen,
(2) what happens with the images of unmatched license plates — likely 99.9% of the plates the tag reader encounters each day,
(3) recourse to the court system to safeguard against abuse,
(4) where do the lists of suspect vehicles come from — it’s not always just stolen cars,
(5) can bad guys trick the scanner, and what consequences does that have for the real value of the system, and
(6) what alternatives were considered and how the decision process should have worked.

I take up each of these questions below.

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TPPD license plate scanner

Posted by Thomas Nephew on 13th February 2009

You had to live – did live, from
habit that became instinct – in
the assumption that every sound
you made was overheard, and,
except in darkness, every
movement scrutinised.

— “1984”, George Orwell

Suppose that the local police in
a particular jurisdiction were to
decide to station a police car at the
entrance to the parking lot of a
well patronized bar from 5:30 p.m.
to 7:30 p.m. every business day for
the purpose of making a list of the
license plates of cars that were
driven in and parked in the lot
during that time… I would guess
that the great majority of people
who might have the question
posed to them would say that
this is not a proper police

— William Rehnquist, 1974

They who can give up essential
liberty to obtain a little temporary
safety, deserve neither liberty
nor safety.

— Benjamin Franklin

This page is a resource page about the proposed acquisition of a license plate scanner system by the Takoma Park Police Department.  I believe there are substantive civil liberties concerns with these systems.

Takoma Park

Civil liberties, civil rights, privacy

Relevant law

Articles, opinions


  • Manufacturers: PlateScan (motto: “The License Plate is just the Beginning”), ELSAG
  • Automatic number plate recognition (Wikipedia)*
  • Evidence for counterfeit or stolen plates as car theft strategy and way of defeating scanners: UK Home Office Consultation Document, undated, response deadline 12/8/2008: “As regards misrepresentation of vehicle registration marks, we understand from the police that there has been a steady increase in the numbers using illegal number plates. Breaches of the legislation include altering the layout of letters and numerals, illegal fonts and the use of tape to change the appearance of the plate. This has significant implications for criminal investigations and crime detection, eg by Automatic Number Plate Recognition (ANPR) systems and automatic speed detection devices.” See also WSJ, BBC (via), CBS; more generally, vehicle cloning report by Natl. Insurance Crime Bureau.

* Common acronyms for these systems include ANPR (automatic number plate recognition), ALPR, LPR, (license plate), and AVI (vehicle identification).
** DPPA and MD 10-616 are mainly relevant to invasions of privacy by non-law enforcement persons — but both disprove the widespread notion that there is no expectation of privacy for license plate information.

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