Norman Baker MP writes…Why the Data Retention and Investigatory Powers Bill is compatible with human rights

Data CenterAs a party we care deeply about human rights. Left to their own devices, the Conservatives would have pulled us out of the European Convention. Thanks to the Liberal Democrats, we have stopped that from happening.

So I am concerned by some suggestions that the emergency legislation we published on Thursday isn’t compliant with the ECHR. This is simply not true.

As many of you will know, in April this year the European Court of Justice overturned the EU Data Retention Directive. They did so on the basis that this particular directive was incompatible with the EU Charter of Fundamental Rights, which requires that EU law is consistent with the European Convention on Human Rights. The reason was that the Directive lacked any safeguards – it allowed Member States to compel phone and internet companies to store data, but said nothing about how that data should be accessed or for what purposes.

I want to be crystal clear about this: the court was talking about the EU directive, NOT our own domestic laws. The UK implements the directive in part using a pre-existing framework of checks and balances under the Regulation of Investigatory Powers Act (RIPA). While that Act has rightly come in for criticism in some regards, not least by the Lib Dems, the basic framework for accessing data that it sets out is compliant with the ECHR.

Where the court ruling is relevant to the UK situation, we are making a number of changes to respond to the ECJ judgement. These changes are set out in the regulations that accompany the Bill, which can be read here.

A more user-friendly summary of these changes is set out in the factsheet, prepared by the Home Office, and set out in bullet-points below.

Finally I would like to re-iterate what I said in my article last week; the Bill does not extend existing powers. It maintains the status quo for a finite period, and, in the meantime, ensures that there will be a root and branch review of RIPA, with new legislation in 2016. Failure to act now would mean the deletion of large amounts of data over the next few weeks. Far from rolling back human rights, last week’s package, secured by the Lib Dems, actually advances our civil liberties.

How is the Government responding to the judgment of the European Court of Justice on the EU Data Retention Directive?

· The ECJ struck down the European Data Retention Directive, not our own laws. The judgment upheld the principle that data could be retained at the request of government, but found that the Directive itself lacked proper safeguards. It did not consider the robust safeguards that already exist in the UK’s communications data regime.
· We believe that our internationally-respected retention and access regime already addresses most of the ECJ’s criticisms.
· However, in order to respond to elements of the judgment and to ensure the Bill is compliant with the ECHR, we are extending the existing safeguards in a number of ways:
· Ministers will need to consider necessity and proportionality before issuing a retention notice, and the impact of the notice on the communications service provider.
· There will be a maximum, rather than absolute, retention period of 12 months – data may be retained for less than 12 months if it is not necessary or proportionate to keep it for longer.
· There will be a clear requirement for the Secretary of State to keep notices under review.
· Data retention notices will, as at present, be limited to a strict list of data types. This will be identical to the existing list in the 2009 Data Retention Regulations
· The content of the new notices will be far more specific, for example setting out the categories of data to be retained, and which services this retention applies to.
· Access to retained communications data will be limited to requests under RIPA and court orders.
· To protect the privacy of users, data security requirements will be set out on the face of the notice requiring a CSP to retain data, and will be enforceable.
· The duties of the Information Commissioner will be clarified, so that he can oversee all of the relevant aspects of the retention of data.
· We will create a Code of Practice on Data Retention, which will put best-practice guidance on a statutory footing, including (a) ensuring that when law enforcement are acquiring data on individuals known to come from certain groups (e.g. lawyers, journalists), further additional consideration of relevant facts (e.g. sensitivity, collateral intrusion) will be required; and (b) making it clearer that the officer authorising access to communications data should be independent of the investigation for which the data is required.
· These changes are set out in the regulations that accompany the Bill rather than on the face of the Bill itself.
· The Bill is compatible with the ECHR and will contain the normal statement to this effect from the Home Secretary.

Photo by Bob Mical

* Norman Baker is the MP for Lewes, a Minister of State at the Home Office and formerly Minister in the Department of Transport

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38 Comments

  • It is indefensible. Stop trying.

  • “So I am concerned by some suggestions that the emergency legislation we published on Thursday isn’t compliant with the ECHR. This is simply not true.”

    What you mean is that your opinion is that it’s not true. That’s very different.

    Obviously, the only way to know for sure whether it is compliant with the ECHR will be to test it in the courts.

  • Richard Dean 14th Jul '14 - 6:33pm

    Following the rational, logical, well-founded and detailed argument put forward by Chris, I would like to add my own rational, logical, well-founded and detailed argument. So here it is …

    You present a good defence, Norman. Keep up the good work!

  • Darren Reynolds 14th Jul '14 - 8:50pm

    The draft legislation gives the power to the Secretary of State to require anyone to do anything in connection with communications data retention. This power will still be in force next May when the Tories take over in a majority Government. That is why we are against it, Norman. You are giving the power to the Tories to do anything, with only a cursory glance and a nod from their majority of MPs in Parliament. Shame on you.

  • Rational argument often does not work with people. See the wikipedia page on “confirmation bias”

  • Richard Dean 14th Jul '14 - 9:17pm

    @Voter
    … particularly LibDems?

  • @Richard Dean
    I would not say that. I might talk to anyone here, even a ukip person like you.

    But as my main goal is to persuade, those who seem immune to that will get less response from me, than those who genuinely seem interested in the merits of the case

  • Richard Dean 14th Jul '14 - 9:51pm

    @Voter
    I am not a “ukip person”, thank you very much.

  • “The ECJ struck down the European Data Retention Directive, not our own laws.” – Yes Minister, the Home Office has been claiming to ISPs in the three months since the CJEU ruling ruling the law still stands. So why is there now an emergency to create new legislation if it were not our own laws that were struck out? Could it be to do with the Judicial Review that challenged the regulations that place the directive into UK law? Either there is an emergency because the directive was ruled unlawful and we need to legislate or lose these powers or there isn’t, the Home Office can’t try and have its cake and eat it.

    Then these measures on how the Government is responding to the CJEU ruling. They all ignore the two really crucial parts of the CJEU ruling firstly that blanket data retention severely interferes with the fundamental rights to respect for private life and to the protection of personal data.

    “restrict retention to data that is related to a threat to public security and in particular restrict retention to a particular time period, geographical area and / or suspects or persons whose data would contribute to the prevention or prosecution of crime” (para 58)

    Secondly that

    “empower an independent administrative or judicial body to make decisions regarding access to the data on the basis of what is strictly necessary ” (para 62)

  • Mark Richards 15th Jul '14 - 9:06am

    Mass data retention is a violation of fundamental rights. Sure there are human rights to personal privacy, but fundamental requirements in a democracy to protect journalists, lawyers, doctors and political activities from surveillance. There’s already evidence of the misuse of the existing mass surveillance. Why are agents watching sexual video calls? Why are protestors and politicians targeted? Why was GCHQ commiting acts against Brits that would be criminal for a citizen to do: ie attacks on protestors computers? This surveillance is of little value to terrorism because as much as we hate terrorism, which is obviously nasty, until its death rate is worse than drink driving and cost low enough not to save so many lives in our health system, we’ve got bigger problems that won’t be solved by databasing every move and message we make.
    The very fact we’ve got a military agency involved in this is ridiculous too: the system itself is beyond visibility for public accountability and few tweaks will fix this. The UK should be thrown out of the EU for its invasion of EU citizen’s privacy, our press should set up abroad and foreign companies should avoid our tech sector completely as things stand. Surveillance needs to be managed by an independently, publicly, criminally and financially accountable body that targets criminal behaviour and is mandated to publish its surveillance activities against anyone, say 5 years after they happen and as soon as possible where scope accidentally or otherwise included those who shouldn’t have been watched. Without principles like this we’re heading into a mess if we’re not already in a one.

  • “As a party we care deeply about human rights.”

    No, you don’t. You don’t have to take my word for it – today I can *show* you that you don’t care.

    At 10pm tonight, Tom Watson and David Davis will table an amendment reducing the sunset clause from two and a half years to six months, on the basis that emergency legislation should cover the minimum period necessary, and six months allows ample time for a properly debated bill to be put in place.

    And will lib dems vote in favour of this amendment? They will not. Because they don’t care.

  • Carol Weaver (Dr) 15th Jul '14 - 11:50am
  • Mark Park, Norman Baker, Julian Huppert and Brian Paddick have all written articles suggesting that we basically have to suck it up, it’s not that bad, etc. Meanwhile rogue Labour and Tory MPs are leading the charge for civil liberties, perhaps Norman should work with them instead of making excuses for authoritarian governance.

  • In effect the arguments being put forward are saying in effect that Lib Dem Ministers and MPs are liars. Why not just be honest and say that?
    I am willing to trust Norman Baker and Julian Huppert. I simply do not believe that these two Lib Dem MPs would support any proposals that are as the detractors suggest.
    Maybe it would be more comfortable standing on the sidelines and playing ya boo politics, by rejecting this legislation. Since it’s going to pass with or without our support, surely the best way forward is to get stuck in and try to get improvements to what would otherwise be a Tory/Labour bill, which is exactly what the parliamentarians have done.
    Better a glass half full than empty.

  • Malcolm Todd 15th Jul '14 - 1:06pm

    Mick Taylor
    You trust who you want. The rest of us will question anyone, regardless of past service or performance. If their claims don’t make sense or at variance with observed fact then that’s their problem (and yours), not ours.

  • James Baker 15th Jul '14 - 1:09pm

    @Mick I speak truth to power, our Minister says “he Bill does not extend existing powers.” a whole host of respected legal experts have written a letter saying it does, and my own mind as a radical free thinking liberal has come to he same conclusion.

    You say trust our ministers, I say open your eyes to the truth.

    To all Members of Parliament,

    Re: An open letter from UK internet law academic experts

    On Thursday 10 July the Coalition Government (with support from the Opposition) published draft emergency legislation, the Data Retention and Investigatory Powers Bill (“DRIP”). The Bill was posited as doing no more than extending the data retention powers already in force under the EU Data Retention Directive, which was recently ruled incompatible with European human rights law by the Grand Chamber of the Court of Justice of the European Union (CJEU) in the joined cases brought by Digital Rights Ireland (C-293/12) and Seitlinger and Others (C-594/12) handed down on 8 April 2014.

    In introducing the Bill to Parliament, the Home Secretary framed the legislation as a response to the CJEU’s decision on data retention, and as essential to preserve current levels of access to communications data by law enforcement and security services. The government has maintained that the Bill does not contain new powers.

    On our analysis, this position is false. In fact, the Bill proposes to extend investigatory powers considerably, increasing the British government’s capabilities to access both communications data and content. The Bill will increase surveillance powers by authorising the government to;

    compel any person or company – including internet services and telecommunications companies – outside the United Kingdom to execute an interception warrant (Clause 4(2));
    compel persons or companies outside the United Kingdom to execute an interception warrant relating to conduct outside of the UK (Clause 4(2));
    compel any person or company outside the UK to do anything, including complying with technical requirements, to ensure that the person or company is able, on a continuing basis, to assist the UK with interception at any time (Clause 4(6)).
    order any person or company outside the United Kingdom to obtain, retain and disclose communications data (Clause 4(8)); and
    order any person or company outside the United Kingdom to obtain, retain and disclose communications data relating to conduct outside the UK (Clause 4(8)).
    The legislation goes far beyond simply authorising data retention in the UK. In fact, DRIP attempts to extend the territorial reach of the British interception powers, expanding the UK’s ability to mandate the interception of communications content across the globe. It introduces powers that are not only completely novel in the United Kingdom, they are some of the first of their kind globally.

    Moreover, since mass data retention by the UK falls within the scope of EU law, as it entails a derogation from the EU’s e-privacy Directive (Article 15, Directive 2002/58), the proposed Bill arguably breaches EU law to the extent that it falls within the scope of EU law, since such mass surveillance would still fall foul of the criteria set out by the Court of Justice of the EU in the Digital Rights and Seitlinger judgment.

    Further, the bill incorporates a number of changes to interception whilst the purported urgency relates only to the striking down of the Data Retention Directive. Even if there was a real emergency relating to data retention, there is no apparent reason for this haste to be extended to the area of interception.

    DRIP is far more than an administrative necessity; it is a serious expansion of the British surveillance state. We urge the British Government not to fast track this legislation and instead apply full and proper parliamentary scrutiny to ensure Parliamentarians are not mislead as to what powers this Bill truly contains.

    Signed,

    Dr Subhajit Basu, University of Leeds

    Dr Paul Bernal, University of East Anglia

    Professor Ian Brown, Oxford University

    Ray Corrigan, The Open University

    Professor Lilian Edwards, University of Strathclyde

    Dr Theodore Konstadinides, University of Surrey

    Professor Chris Marsden, University of Sussex

    Dr Karen Mc Cullagh, University of East Anglia

    Dr. Daithí Mac Síthigh, Newcastle University

    Professor David Mead, University of East Anglia

    Professor Andrew Murray, London School of Economics

    Professor Steve Peers, University of Essex
    Julia Powles, University of Cambridge

    Professor Burkhard Schafer, University of Edinburgh

    Professor Lorna Woods, University of Essex

  • >surely the best way forward is to get stuck in and try to get improvements
    >to what would otherwise be a Tory/Labour bill, which is exactly what
    >the parliamentarians have done.

    No, it isn’t! Show me where the Lib Dem concession in this bill are. Ironically it’s a Tory and Labour MP leading the charge on more amendments. Blind belief and trust in government typifies the social conditions in which authoritarian regimes thrive; I’ll spare you the obvious examples.

  • Richard Dean 15th Jul '14 - 2:06pm

    The legal academics have surely got themselves in a bit of a twist? All their bullet points refer to the fact that the new legislation simply removes the exemption that foreign companies operating in the UK used to have.

    Foreign-domiciled and multi-national firms operating in the UK might get way with tax loopholes, but they aren’t going to be above this particular law.

  • Mick Taylor 15th Jul '14 - 4:36pm

    James Baker

    As a retired academic I have little trust in the words of so-called experts. I have seen far too many slipshod assertions and ill researched papers. I suspect that many of the so-called experts who signed the letter are against anything this government would put forward and not only on this subject.

    There is a clear choice for a party in government. Get your hands dirty or pretend to stay pure. If we are out of government after the next election – a likely bet at the moment – then James, Malcolm et al will be able to be pure as the driven snow and totally ineffective and powerless.

    And you suggest I should open my eyes!

  • Mick Taylor 15th Jul '14 - 4:44pm

    And by the way, I have been a group leader in a minority administration, an executive member in a government of all the talents and a backbencher. I always trusted my colleagues to do the best they could on their various committees and almost always supported their hard won proposals. I expected them to do the same with me. Compromise is always difficult and sometimes you have to bite your tongue or swallow hard and back your colleagues. No risk of that in this blog!

    It really is about time we stopped pretending we’re not really in government and that we have the luxury of opting out of anything the least bit controversial or difficult. Quite honestly the only place for that sort of attitude is permanent opposition and we’ll never achieve Liberal democracy that way.

  • James Baker 15th Jul '14 - 5:04pm

    @Mick I don’t think you can dismiss a bunch of legal experts by smearing them as folk who would be opposed to anything. If you have a good legal argument about why they are wrong and the minister is right then put it forward but I’m not going to simply believe things Lib Dem MPs say based on blind trust.

    Although government may necessitate some getting of hands dirty, it’s a fallacious argument to suggest it will always entail this. Whilst I don’t mind getting hands dirty on something the bottom line is that no party can credibly trade something legal for agreeing to something illegal.

  • @Mick
    “No risk of that in this blog!”

    It does not work that way. This is why a coalition agreement was struck in the first place, so it would not have to be continual “giving in” to the Tories. The only reason to keep giving in on things like secret courts is fear of losing power. The problem with that is if your partner knows that nothing would make you walk away from government, you really have no power in the first place

  • Richard Dean 15th Jul '14 - 5:32pm

    @James Baker
    Please see my earlier comment which is the “good legal argument about why they are wrong and the minister is right ” that you require.

    @Mick Taylor
    Yes, being an academic is not a guarantee of wisdom or impartiality. The letter was obviously written as a pamphlet, which detracts from its value as a technical opinion. Why else tease out a single issue into ten repetitive bullet points about “outside the UK”

  • Not all experts are that good.
    For example, you get doctors implying that when you exercise, you feel good and lose weight. The problem is that there are plenty of people who feel only tired after exercise and who do not lose weight

  • Burkhard Schafer 15th Jul '14 - 7:47pm

    Mick Taylor 15th Jul ’14 – 4:36pm

    Being one of the signatories, and a Lib Dem member (for over a decade – though it is getting harder by the day to remain in the party) who was, reluctantly, in favour of joining the coalition, I find the smear job you are attempting deeply offensive. The anti-intellectual “what do these boffins know” slant fits much better on the front page of the daily mail than to a serious debate within the Liberal Democrats. This type of “poisoning the well” argument is just a sorry excuse for intellectual laziness and disregard for facts.

    No. I’m not against anything this government proposes. I am however against laws that further and further erode basic liberties, especially if their claimed benefits are doubtful at best and ill evidenced.
    I’m also against poorly drafted knee jerk reactions in response to the latest moral panic, unfortunately a virus the party caught in government.

    I’m also against playing fast and lose with the institutions of parliamentary democracy. Tinpot dictators rule by emergency law, not mature democracies.

    There is no real emergency here, maybe, at best, a self-inflicted degree of urgency, caused what seems to be utter incompetence by the Home Office. All these issues were long in the making, and foreseeable for a long time. The debate should have started long before the verdict was delivered and proper plans openly discussed and prepared. I’m not aware of any other EU country being at the moment in the same headless chicken mode over the verdict. On the contrary, the tendency across Europe is to strengthen, not weaken privacy laws.

    I’m also against anything that could mislead the public. Norman Baker might genuinely belief that the law only restores existing powers. We have shown, with evidence, that as drafted this seems not to be the case. Maybe then the law as (badly and hurriedly) drafted does not really say what its sponsors think it does – that is exactly why we have the lengthy process of legislation, to allow others to check on our’s ideas, just as it is best practice to ask someone else to do one’s proofreading. At the very least, the claims made also by us Lib Dems are highly contestable, and it is just not acceptable, and highly misleading, to go to the public, and pretend that “obviously”, this law is nothing else but an innocent administrative correction.

    Watson’s and Davis’ amendment goes a long way in the right direction. There is no need to have such an extended sunset period. None of the “concessions” Norman Baker mentions are in the bill. If they are really a prerequisite to bring our regime in line with a respect for privacy and liberty, then the makeshift law that will operate without them must not be in force for a day longer than absolutely necessary. None of the “concessions” has any detail (what if the promised “review” of RIPA recommends even more draconian measures?) or is committing the government to anything in terms of implementation. If the position of the party really is that DRIP requires better protection elsewhere, then we should have said so and linked it, formally, to the validity of the law (e.g. let it expire unless these measures are actually put in place)

  • Norman, when you have to abandon social norms, like not intercepting and retaining communications indiscriminately to protect the population against freak acts of terrorism the terrorists have won. Why is this so hard to understand?

  • @Burkhard – I’m glad there are people like you still in the party. If you are a conference representative then the Calderdale party is looking to sponsor a conference motion around this issue (in terms of the more general point s set out in the ECJ ruling and how DRIP doesn’t comply with them). http://miss-s-b.dreamwidth.org/1531197.html

  • https://www.openrightsgroup.org/blog/2014/drip-heroes

    4 Lib Dem MPs voted against :

    David Heath
    Duncan Hames
    John Hemming
    Adrian Sanders

  • Paul In Wokingham 16th Jul '14 - 8:09am

    @ChrisB – Naomi Long also voted against.

  • Tsar Nicholas 16th Jul '14 - 10:22am

    Well done, Heath, Hames, Hemming, Sanders and Long.

    There are on another thread quite a few posts about the privacy of PPCs. My view is to question whether PPCs and MPs (with exceptions, such as the five above) from across all parties should have an expectation of privacy since so many of them have spent the last few decades doing everything they can to destroy my privacy through retention of emails, phone recordings and so on.

    Let’s face it – we do not any longer live in a free society.

  • Hey Tsar,

    Let’s be real – government intercept of communications has been a social norm since WWII. A close family member used to worked in this field back in the 70’s, whilst the processes were manual back then and each tap required an operator to some extent the current measures actually have more safeguards. I grew up with what we used to call a “clicky” phone, one that you could occasionally hear interference from wiretaps (someone usually does watch the watchmen) and sometimes you’d wind up inadvertently connected to the operator who was maintaining the tap, which was difficult for all involved!

    The shift is in who does the tap, how it’s implemented, the scale that it’s done and the fact there’s hardly anyone opposed to it any more. It’s a lot simpler to collect and collate digital data than the analogue counterpart, so we can spy on lots more people, plus it’s nearly always cheaper to store, analyse and manipulate digital data. PPCs/MPs traditionally have been tapped as standard, I assume that to still be the case.

    I don’t think anything has fundamentally changed as regards your freedoms, but I do find it disconcerting that we bundle and sell all of this information wholesale to America, from one of their bases on the UK mainland. My concern is yesterday proved that the UK doesn’t have a political party that is genuinely committed to civil liberties. I didn’t want them to vote against, I wanted better legislation. What was appalling about this process is listening to people trying to justify the unjustifiable, and claim that the bill is better for Lib Dem safeguards.

  • All this anger at Lib Dems reminds me – I’d like to thank James Baker for his relentless pursuit of what I deem true Liberal values as regards civil liberties. He took the time to read my comment, work out where I was wrong (trusting Huppert) and pointed it out in a very civil manner. We’ve seen a lot of folks true colours over the past week, and for some that’s been a very positive experience and gives me hope for the future. He exemplified attributes that I’d like to see in more politicians, this weeks LDV Nyborg. I wish any of the PPC’s around here acted like that because it would make next May a lot easier. 😉

    Clegg, Huppert, Baker & Farron watch and learn, this is how it should be done!

    On the flip of this Jim Killock’s lot admit responsibility for getting this emergency underway. From the ORG : “We believe that it is the threat of legal action by Open Rights Group and other organisations that has prompted this ‘emergency’ legislation”. So, seemingly the best way to avoid this sort of thing is to not join organisations that rings governments up and threatens them with legal action, because, as Jim should know by now, governments make the law!

  • Tsar Nicholas 16th Jul '14 - 4:43pm

    @ChrisB

    It shows how far our expectations have fallen when we can accept that our emails and phone calls are being intercepted and monitored. Snowden claims, for example, that in the US 80% of phone calls are recorded. Not just metadata, but actual voice recordings!

    I can’t imagine that GCHQ – soul mate of the NSA – has a different set of practices, so please be on your guard when you chat to your significant other.

    Back in the 1970s and 1980s my father received letters from relatives in the then Soviet Union. these letters would often exhibit all the signs of having been opened and read, with the envelopes sealed back with sellotape, and sometimes with passages blacked out.

    The current monitoring of ordinary citizens is just as Soviet, although somewhat softer than opened envelopes because it is less visible.

  • James Baker 16th Jul '14 - 7:11pm

    @ChrisB – Thanks Chris, i’ve found this past week not only fighting DRIP but also losing respect for people I myself trusted on Civil Liberties issues quite draining. Comments like that help me to keep on fighting!

  • Hey Tsar,

    >It shows how far our expectations have fallen when we can
    >accept that our emails and phone calls are being intercepted and monitored.

    I don’t agree, I think it merely demonstrates that WWII brought about technological and social changes that are still with us today. Since then we’ve accepted that technology can be used iniquitously and most accept that to respond to this there will have to be some sort of government intervention. Communications intercepts were standard GPO practice for post and telegraphy – your Fathers letters were probably intercepted in the opposite direction too, it’s just we were much more discreet about these matters, you’d never know unless the operator/postie was poor at their job. I don’t have a problem with that, I just think most legislation on this subject is technically inept and so creates situations where…

    >…80% of phone calls are recorded. Not just metadata, but actual voice recordings!

    At which point I think we can all agree things have gone too far! Civil liberties are balancing acts – we don’t want to ban people from smoking, but we don’t want innocents getting lung cancer from passive smoke either. Watching our MPs completely clueless regarding how you might achieve a better balance was embarrassing, and it meant that more authoritarian voices won the debate (not that we really put up a fight).

    >please be on your guard when you chat to your significant other.

    I’m always careful what I say on the phone/internet. Loose lips sink ships!

  • Hey James,

    >losing respect for people I myself trusted on Civil Liberties issues quite draining.

    I’ve had weeks like yours and found it very demoralising, but it helped me see the wood from the trees (or the warrior from the apologist); I could see you banging your head against the wall and felt your pain! I left the party because of one too many of these scenarios, but there’s no alternative out there and now I don’t have a say. So, if you fancy becoming a PPC at some point in the future, I’d happily get on the train and help!

    As Tosh & Marley said “stand up for you rights, don’t give up the fight!”. Keep it big.

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