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5, 2021), https://www.nytimes.com/2021/03/05/us/politics/trump-proud-boys-capitol-riot.html [https://perma.cc/4CDW-LRUT]. 13, 2019), https://www.nytimes.com/interactive/2019/04/13/us/google-location-tracking-police.html [https://perma.cc/3RF9-6QG6]. Both iPhone and Android have a one-click button to tap that disables everything. 19-cr-00130 (E.D. ; Fed. The trick is knowing which thing to disable. 20 M 392, 2020 WL 4931052, at *10 (N.D. Ill. Aug. 24, 2020) (quoting the governments search warrant applications). In collaboration with The Nib and illustrator Chelsea Saunders, we've adapted "Coded Resistance" into comic form. This understanding is consistent only with treating step one as the search.8888. 7, 2020, 6:22 AM), https://www.nbcnews.com/news/us-news/google-tracked-his-bike-ride-past-burglarized-home-made-him-n1151761 [https://perma.cc/73TP-KBXR]. Execs. Assn, 489 U.S. 602, 61314 (1989); Camara v. Mun. Even more strikingly, this level of intrusion is often conducted with little to no public safety upside. Given that particularity is inextricably tied to geographic and temporal scope, law enforcement should not be able to seek additional information about a narrowed pool of individuals without either obtaining an additional warrant or explicitly delineating this second search in the original warrant. Id. The breakthroughs and innovations that we uncover lead to new ways of thinking, new connections, and new industries. See, e.g., Stephen Silver, Police Are Casting a Wide Net into the Deep Pool of Google User Location Data to Solve Crimes, AppleInsider (Mar. and with geofence warrants, there is often barely a law enforcement rationale. Russell Brandom, Feds Ordered Google Location Dragnet to Solve Wisconsin Bank Robbery, The Verge (Aug. 28, 2019, 4:34 PM), https://www.theverge.com/2019/8/28/20836855/reverse-location-search-warrant-dragnet-bank-robbery-fbi [https://perma.cc/JK5D-DEXM]. See Berger v. New York, 388 U.S. 41, 5153 (1967). 1 v. Redding, 557 U.S. 364, 371 (2009) (citations omitted) (quoting Gates, 462 U.S. at 238, 244 n.13); see also Texas v. Brown, 460 U.S. 730, 735 (1983) (plurality opinion). . It should be a last resort, because its so invasive.. OConnor, supra note 6. applies to these warrants. The Arson court first emphasized the small scope of the areas implicated. It ensures that the search will be carefully tailored to its justifications126126. Federal public defender Donna Lee Elm has proposed the enactment of a geofence-specific statute that parallels the Federal Wiretap Act, 18 U.S.C. and the Drug Enforcement Administration was given broad authority to conduct covert surveillance of protesters.108108. 08-1332), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2009/08-1332.pdf [https://perma.cc/237H-X9DN] (statement of Kennedy, J.) See, e.g., Berger, 388 U.S. at 51 (suggesting that section 605 of the Communications Act of 1934, 47 U.S.C. See Google Amicus Brief, supra note 11, at 10; see also Carpenter, 138 S. Ct. at 2218 (recognizing that high technological precision increases the likelihood that a search exists); United States v. Beverly, 943 F.3d 225, 230 n.2 (5th Cir. Apple and Facebook remained resolute in their vow not to build back doors into their products for law enforcement to potentially view the private communications of . 3 0 obj See Sidney Fussell, Creepy Geofence Finds Anyone Who Went Near a Crime Scene, Wired (Sept. 4, 2020, 7:00 AM), https://www.wired.com/story/creepy-geofence-finds-anyone-near-crime-scene [https://perma.cc/PC3Q-ZCMG]. Oops something is broken right now, please try again later. . 775, 84245 (2020). I'm sure once when I was watching the keynote on a new iOS they demonstrated that you could open up maps and draw a geofence around an area so that you could set a reminder for when you leave or enter that area without entering an address. Application for Search Warrant, supra note 174. Recently, users filed a class action against Google on these grounds. Zachary McCoy went for a bike ride on a Friday in March 2019. . The major exception is Donna Lee Elm, Geofence Warrants: Challenging Digital Dragnets, Crim. Here's another rejection covered by Techdirt this one arriving nearly a year ago . Companies can still resist complying with geofence warrants across the country, be much more transparent about the geofence warrants it receives, provide all affected users with notice, and give users meaningful choice and control over their private data. But they can do even more than support legislation in one state. Maryland v. Garrison, 480 U.S. 79, 84 (1987). On the other hand, the government has an interest in finding incriminating evidence and preventing crime.132132. The Chatrie opinion suggests it would approve a geofence warrant process in which a magistrate or court got to make a probable cause determination before geofence data of the likely suspect is de . There is a simple answer and it's this: just disable "Location" tracking in the settings on the phone. and not find a cell phone on the person,142142. probable causes exact requisite probability remains elusive. See Deanna Paul, Alleged Bank Robber Accuses Police of Illegally Using Google Location Data to Catch Him, Wash. Post (Nov. 21, 2019, 8:09 PM), https://www.washingtonpost.com/technology/2019/11/21/bank-robber-accuses-police-illegally-using-google-location-data-catch-him [https://perma.cc/A9RT-PMUQ]. Just this week, Forbes revealed that Google granted police in Kenosha, Wisconsin, access to user data from bystanders who were near a library and a museum that was set on fire last August, during the protests that followed the murder of George Floyd. See, e.g., Information Requests, Twitter (Jan. 11, 2021), https://transparency.twitter.com/en/reports/information-requests.html [https://perma.cc/8UCA-8VK5]; Law Enforcement Requests Report, Microsoft, https://www.microsoft.com/en-us/corporate-responsibility/law-enforcement-requests-report [https://perma.cc/ET8L-TL9C]; Transparency Report: Government Requests for Data, Uber (Sept. 22, 2020), https://www.uber.com/us/en/about/reports/law-enforcement [https://perma.cc/M9J4-YKT6]. not due to the accompanying documents or post hoc narrowing by law enforcement or a private company.164164. at 48081. and anyone who visits a Google-based application or website from their phone,4444. Explore the stories of slave revolts, the coded songs of Harriet Tubman, civil rights era strategies for circumventing "Ma Bell," and the use of modern day technology to document police abuse. New iMac With 'iPad Pro Design Language'. Id. 20 M 525, 2020 WL 6343084, at *6 (N.D. Ill. Oct. 29, 2020). The Things Seized. Although the Court in Carpenter recognized the eroding divide between public and private information, it maintained that its decision was narrow and refused to abandon the third party doctrine.3838. amend. The Reverse Location Search Prohibition Act, / S. 296, would prohibit government use of geofence warrants and reverse warrants, a bill that EFF also, . See Katz v. United States, 389 U.S. 347, 35657 (1967); see also Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325 (1979). A warrant that authorized one limited intrusion rather than a series or a continuous surveillance thus could not be used as a passkey to further search.8787. amend. When a geofence warrant is executed, courts should recognize that the search consists of two components: a search through (1) a private companys database for (2) data associated with a particular time and place. Police around the country have drastically increased their use of geofence warrants, a widely criticized investigative technique that collects data from any user's device that was in a specified area within a certain time range, according to new figures shared by Google. the Fourth Amendment guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures and requires that warrants be issued only upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.4949. The U.S. Patent and Trademark Office on Tuesday granted Apple a patent for a mobile device monitoring system that uses anonymized crowdsourced data to map out cellular network dead spots. Otherwise, privacy protections would be left largely to the discretion of law enforcement rather than the judiciary or legislature.8989. Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018). Compare United States v. Ross, 456 U.S. 798, 821 (1982) ([A] warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.), with Arson, 2020 WL 6343084, at *10 (When the court grants a warrant for a unit in [an] apartment building for evidence of a wire fraud offense, it does not grant a warrant for that entire floor or the entire apartment building, but rather the specific apartment unit where there is a fair probability that evidence will be located.). Because of their inherently wide scope, geofence warrants can give police access to location data from people who have no connection to criminal activities. Never fearcheck out our. 8$6m7]?{`p|}IZ%pVcn!9c69?+9T:lDhs%fFfA# a$@-qyKmE3 /6"E3J3Lk;Np. 793Stop All Digital Last week, the New York Attorney General secured a $410,000 fine from Patrick Hinchy and 16 companies that he runs which produce and sell spyware and stalkerware. As courts are just beginning to grapple seriously with how the Fourth Amendment extends to geofence warrants, the government has nearly perfected its use of these warrants and has already expanded to its analogue: keyword search history warrants. Rooted in probability, probable cause is a flexible standard, not readily, or even usefully, reduced to a neat set of legal rules.136136. Because the search area was broad and thus vague, a warrant would merely invite[] the officers to roam the length of [the street]117117. R. Crim. Government practice further suggests that the search begins when companies look through their entire databases. In re Search Warrant Application for Geofence Location Data Stored at Google Concerning an Arson Investigation (Arson)150150. Apple, Uber, and Snapchat have all received similar requests from law enforcement agencies. Id. No available New Jersey decision analyzes geofence warrants. See Google Amicus Brief, supra note 11, at 5. including Calendar, Chrome, Drive, Gmail, Maps, and YouTube, among others.4545. Eighty-one percent have smartphones. Google handed over the GPS coordinates and data, device data, device IDs, and time stamps for anyone at the library for a period of two hours; at the museum, for 25 minutes. The fact that geofence warrants capture the data of innocent people is not, by itself, a problem for Fourth Amendment purposes since many technologies such as security cameras do the same. According to the data, "Google received 982 geofence warrants in 2018, 8,396 in 2019 and 11,554 in 2020.". As a result, and because Google has recently revealed how it processes these warrants, this Note discusses Google in particular detail, though it functions as a stand-in for any company that collects and stores location data. See Valentino-DeVries, supra note 25. Lab. See Google Amicus Brief, supra note 11, at 14. Step twos back-and-forth reinforces the possibility that a companys entire database could be retrieved and exposed to law enforcement from nonobservable form to observable form. Id. See, e.g., Elm, supra note 27, at 11, 13. 1181 (2016). The geofence warrants served on Google shortly after the riot remained sealed. Courts have granted law enforcement geo-fence warrants to obtain information from databases such as Google's Sensorvault, which collects users' historical . 1848 (codified as amended in scattered sections of 18 U.S.C.). . See, e.g., Search Warrant, supra note 5. Even when individual challenges can be brought, judicial warrant determinations are entitled to great deference by reviewing courts.178178. at 57. See Ornelas v. United States, 517 U.S. 690, 700 (1996); Wong Sun v. United States, 371 U.S. 471, 480 (1963); Erica Goldberg, Getting Beyond Intuition in the Probable Cause Inquiry, 17 Lewis & Clark L. Rev. 2006). Id. . See Brewster, supra note 82. See, e.g., Global Requests for User Information, Google, https://transparencyreport.google.com/user-data/overview [https://perma.cc/8CQU-943P]. Brewster, supra note 14. In Wong Sun v. United States,115115. In Berger v. New York,8484. 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020). Emblematic of general warrants, these warrants should be highly suspect per se. See Valentino-DeVries, supra note 25. "We vigorously protect the privacy of our users while supporting the important work of law enforcement, Google said in a statement to WIRED. Last year alone, the company received over 11,550 geofence warrants from federal, state, and local law enforcement. at 41516 (Sotomayor, J., concurring); United States v. Knotts, 460 U.S. 276, 28182 (1983). and geographic area delineated by the geofence warrant. . United States v. Lefkowitz, 285 U.S. 452, 464 (1932). Android controls around eighty-five percent of the global smartphone market. Like thousands of other innocent individuals each year, McCoy and Molina were made suspects through the use of geofence warrants.99. Va. June 14, 2019). At this time, fewer pedestrians would be around, and fewer individuals would be captured by the geofence warrant. July 14, 2020). The online conversations that bring us closer together can help build a world thats more free, fair, and creative. The Court has recognized that when these rights are at issue, the warrant requirements must be accorded the most scrupulous exactitude. Stanford v. Texas, 379 U.S. 476, 485 (1965); see id. Probable cause ensures that no intrusion at all is justified without a careful prior determination of necessity130130. Geofence warrants, in contrast, allow law enforcement to access private companies deep repository of historical location information,101101. In response to two FBI requests, for example, Google produced 1,494 accounts at step two.172172. The Richmond police used personal data from Google Maps to crack a six-month-old bank robbery, triggering protests from the suspect's counsel that the use of what is known as a "geofence warrant . While Google has responded to requests for additional information at step two without a second court order, see Paul, supra note 75, this compliance does not mean the information produced is a private search unregulated by the Fourth Amendment. 561 (2009). and raise interesting and novel Fourth Amendment questions, they have rarely been studied.2727. Yet there is little to suggest that courts will hold geofence warrants categorically unconstitutional any time soon, despite the Courts recognition that intrusive technologies should trigger higher judicial scrutiny.177177. 1. Geofence and reverse keyword warrants are some of the most dangerous, civil-liberties-infringing and reviled tools in law enforcement agencies digital toolbox. WIRED is where tomorrow is realized. Execs. Assn, 489 U.S. 602, 614 (1989). and cell-site simulators,100100. Ng, supra note 9. Because this data is highly sensitive, especially in the aggregate, a description of the things to be seized is critical to framing the scope of warrants, which judges are constitutionally tasked to review. Many are rendered useless due to Googles slow response time, which can take as long as six months because of Sensorvaults size and the large number of warrants that Google receives.112112. Alfred Ng, Google Is Giving Data to Police Based on Search Keywords, Court Docs Show, CNET (Oct. 8, 2020, 4:21 PM), https://www.cnet.com/news/google-is-giving-data-to-police-based-on-search-keywords-court-docs-show [https://perma.cc/DVJ9-BWB3]. Between 2017 and 2018, Google saw a 1,500% increase in geofence requests. While some explain this practice by pointing to the Stored Communications Act,5959. In fact, geofence warrants, like most warrants, are almost certainly judicial records, which are the quintessential business of the publics institutions6262. . EFF Backs California Bill to Protect People Seeking Abortion and Gender-Affirming Care from Dragnet Digital Surveillance, Stalkerware Maker Fined $410k and Compelled to Notify Victims, Civil Society Organizations Call on theHouse Of Lords to ProtectPrivate Messaging in the Online Safety Bill, Brazil's Telecom Operators Made Strides and Had Shortcomings in Internet Lab's New Report on User Privacy Practices, EFF and Partners Call Out Threats to Free Expression in Draft Text as UN Cybersecurity Treaty Negotiations Resume, Global Cybercrime and Government Access to User Data Across Borders: 2022 in Review, Users Worldwide Said "Stop Scanning Us": 2022 in Review. 25102522, which would require law enforcement to establish necessity. There was likely no evidence of the crime in these other areas. Time period should be treated analogously to geographic parameters for purposes of probable cause. Id. Ninety-six percent of Americans own cell phones. They're also controversial. 1241, 1245, 126076 (2010) (arguing that [t]he practice of conditioning warrants on how they are executed, id. To allow officials to request this information without specifying it would grant them unbridled discretion to obtain data about particular users under the guise of seeking location data.175175. Carpenter, 138 S. Ct. at 221920. As a result, geofence warrants are general warrants and should be unconstitutional per se. Google received 982 geofence warrants in 2018, 8,396 a year later, and 11,554 in 2020, according to the latest data released by the company. Take a reasonably probable hypothetical: In response to the largest set of geofence warrants revealed to date, Google provided law enforcement with the location for 1,494 devices. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of Sensorvault.7979. . Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. 2016); 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 2.7(b), at 95355 (5th ed. In other words, officer discretion must be cabined not fully eliminated. Geofence and reverse keyword warrants completely circumvent the limits set by the Fourth Amendment. Id. id. Spy Cams Reveal the Grim Reality of Slaughterhouse Gas Chambers. for example, an English court struck down a warrant that allowed officials to apprehend[] the authors, printers, and publishers of a publication critical of the government9393. Instead, courts rely on a case-by-case totality of the circumstances analysis.138138. If a geofence warrant is a search, it is difficult to understand why the searchs scope is limited to step two and does not include step one. Theres always collateral damage, says Jake Laperruque, senior policy counsel for the Constitution Project at the nonprofit Project on Government Oversight. George Joseph & WNYC Staff, Manhattan DA Got Innocent Peoples Google Phone Data Through a Reverse Location Search Warrant, Gothamist (Aug. 13, 2019, 5:38 PM), https://gothamist.com/news/manhattan-da-got-innocent-peoples-google-phone-data-through-a-reverse-location-search-warrant [https://perma.cc/RH9K-4BJZ]. Brewster, supra note 82. Wilkes, 98 Eng. In Ohio, requests rose from seven to 400 in that same time. . It may also include addresses, phone numbers, birth dates, social security numbers, payment information, and IP addresses, among other information.174174. In fact, it is this very pervasiveness that has led the Court to hold that searching a cell phone and obtaining CSLI are searches.145145. The warrant must still be sufficiently particular relative to its objective: finding accounts whose location data connects them to the crime. Florida,1313. The court also highlighted the length of time (fifteen to thirty minutes170170. 2015); Eunjoo Seo v. State, 148 N.E.3d 952, 959 (Ind. The overwhelming majority of the warrants were issued by courts to state and local law enforcement. many do not.7474. are, in the words of Google Maps creator Brian McClendon, fishing expedition[s].103103. See, e.g., How Google Handles Government Requests for User Information, Google, https://policies.google.com/terms/information-requests [https://perma.cc/HCW3-UKLX]. But see Orin S. Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. Third and finally, the nature of the crime of arson in comparison to the theft and resale of pharmaceuticals was more susceptible to notice from passerby witnesses.157157. Thus, searching records associated with nearby locations was more likely to turn up evidence of the crime. 1, 2021), https://www.statista.com/statistics/232786/forecast-of-andrioid-users-in-the-us [https://perma.cc/4EDN-MRUN]. Id. United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring); see also id. Professor Orin Kerr has argued in favor of an exposure-based approach: [A] search occurs when information from or about the data is exposed to possible human observation. Law enforcement has served geofence warrants to Google since 2016, but the company has detailed for the first time exactly how many it receives. 20 M 297, 2020 WL 5491763, at *6 (N.D. Ill. July 8, 2020) (rejecting the governments argument that Googles framework curtail[s] or define[s] the agents discretion in a[] meaningful way); see also Arson, 2020 WL 6343084, at *10; Pharma II, No. Instead, it is enough if the description is such that the officer with a search warrant can with reasonable effort and presumably relying on expertise and experience ascertain and identify the place intended.162162. 789, 79091 (2013). Google Amicus Brief, supra note 11, at 89. United States v. Jones, 565 U.S. 400, 429 (2012) (Alito, J., concurring); see also Illinois v. Lidster, 540 U.S. 419, 426 (2004). 636(a)(1); Fed. Arson, No. First, officers had established the existence of coconspirators using traditional surveillance tools.155155. By submitting "geofence" warrants, police are able to look at which phones . Zack Whittaker, Minneapolis Police Tapped Google to Identify George Floyd Protesters, TechCrunch (Feb. 6, 2021, 11:00 AM), https://techcrunch.com/2021/02/06/minneapolis-protests-geofence-warrant [https://perma.cc/9ACT-G98Q]. As Wired explains, in the U.S. these warrants had increased from 941 in 2018 to 11,033 in 2020. 1. Google Amicus Brief, supra note 11, at 1213. Instead, with geofence warrants, they draw a box on a map, and compel the company to identify every digital device within that drawn boundary during a given time period. Yet Google often responds despite not being required to by a court.7575. In other words, the characterization of a geofence warrant as a search in the first place likely relies in part on the prevalence of cell phones. about cell phone usage. But they can do even more than support legislation in one state. See Groh v. Ramirez, 540 U.S. 551, 560 (2004); see also Orin S. Kerr, Ex Ante Regulation of Computer Search and Seizure, 96 Va. L. Rev. it relies in large part on police expertise and intuition134134. . One such feature is Apple's proposed child sexual abuse material detection (CSAM . Arson, again, provides a good example of sufficiently particular geofence warrants. R. Crim. at 117. 2018); United States v. Saemisch, 371 F. Supp. . Plus: A leaked US no fly list, the SCOTUS leaker slips investigators, and PayPal gets stuffed. . Affidavit at 1, In re Search of Info. The Places Searched. See Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (explaining that particularity guarantees that intrusions are as limited as possible). In 2019, a single warrant in connection with an arson resulted in nearly 1,500 device identifiers being sent to the Bureau of Alcohol, Tobacco, Firearms, and Explosives. 2020); State v. Tate, 849 N.W.2d 798, 813 (Wis. 2014) (Abrahamson, C.J., dissenting). A general warrant is one that specifie[s] only an offense, leaving to the discretion of executing officials the decision as to which persons should be arrested and which places should be searched.9191. 2. Support A.B. Similarly, with a keyword warrant, police compel the company to hand over the identities of anyone who may have searched for a specific term, such as a victims name or a particular address where a crime has occurred. See Arson, 2020 WL 6343084, at *10; Pharma II, 2020 WL 4931052, at *1617; Pharma I, 2020 WL 5491763, at *6. Time and Place. 18 U.S.C. Laperruque proposes, at minimum, that law enforcement should be pushed to minimize search areas, delete any data they access as soon as possible, and provide much more robust justifications for their use of the technique, similar to the requirements for when police request use of a wiretap. While all geofence warrants provide a search radius and time period, they otherwise vary greatly. Even assuming that complying with a geofence warrant constitutes a search, there remains a difficult and open threshold question about when the search occurs. 18-mj-00169 (W.D. Brinegar, 338 U.S. at 176; see also Heien v. North Carolina, 574 U.S. 54, 60 (2014) (To be reasonable is not to be perfect . Jennifer Valentino-DeVries, Googles Sensorvault Is a Boon for Law Enforcement. Jorge Molina, for example, was wrongfully arrested for murder and was told only when interrogated that his phone without a doubt placed him at the crime scene.66. Their increasingly common use means that anyone whose commute takes them goes by the scene of a crime might suddenly become vulnerable to suspicion, surveillance, and harassment by police. A geofence warrant is a warrant that goes to any company capable of tracking your location data through your cellphone. . A sufficiently particular warrant must provide meaningful limitations on this lists length, leav[ing] the executing officer with [less] discretion as to what to seize.165165. Elm, supra note 27, at 13; see also 18 U.S.C. See id. . 2018); United States v. Diggs, 385 F. Supp. This Part argues that the relevant search for Fourth Amendment purposes occurs instead when a private company first searches through its entire database step one in Googles framework and that, as a result, geofence warrants are categorically unconstitutional. Carpenter, 138 S. Ct. at 2218. checking the whereabouts of millions of innocent people across the globe just to rule them in as suspects, without producing any evidence about which people, if any, were anywhere near the crime scene. See Stephen E. Henderson, Learning from All Fifty States: How to Apply the Fourth Amendment and Its State Analogs to Protect Third Party Information from Unreasonable Search, 55 Cath. Enter a serial number to review your eligibility for support and extended coverage. But California's OpenJustice dataset, where law enforcement agencies are required by state law to disclose executed geofence warrants or requests for geofence information, tells a completely different story.. A Markup review of the state's data between 2018 and 2020 found only 41 warrants that could clearly constitute a geofence warrant. On the other hand, there is a strong argument that the third party doctrine which states that individuals have no reasonable expectations of privacy in information they voluntarily provide to third parties3535. . That line, we think, must be not only firm but also bright. (quoting Payton v. New York, 445 U.S. 573, 590 (1980))). How to Encrypt any File, Folder, or Drive on Your System, The Hunt for the Dark Webs Biggest Kingpin, Part 1: The Shadow. In others, police have targeted the wrong man, or retrieved data on more than 1,000 phones going through the area, raising concerns about how innocent people can be affected by such warrants.
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