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Fixing the problem of NSA spying

There’s been lots of talk about the problem of NSA spying the last few days, and some partisan braying about it.  But the real question is: what do we do now?  The reality is that the majority of Congress stands overwhelmingly in favor of these programs, and Presidents of both parties have supported these programs, which makes it highly unlikely that they’re going to be stopped completely.  What are practical things that can be done to ensure that the privacy impacts of these programs are limited while still giving the government the data it needs to investigate potential terrorist plots?

Realistic policy options fall into two categories:  1.) reduce what data can be collected and 2.) improve transparency.

Reducing the data the NSA can collect

Changing the data the NSA can collect would require Congressional action to modify the relevant statutes in place (principally Section 215 of the PATRIOT Act), and three primary ideas for accomplishing this have come forward:

  1. Allow the data collection to continue but require a warrant based on probable cause to access any of the records for a U.S. citizen.  This approach was introduced as legislation by Sen. Rand Paul (R-Kentucky), and would raise the legal standard for accessing the collected data.
  2. Limit data collection to eliminate purely domestic calls.  Raised as an alternative to the 2008 FISA Amendments Act, this would limit the collection of data to calls where at least one of the callers was foreign, except in cases where a definitive connection to terrorist activity could result in a warrant to acquire that data.
  3. Limit data collection to a suspicion-based standard.  Instead of doing a dragnet of all calls made, data collection could only occur records based on a reasonable suspicion of terrorist activity — of someone suspected of being a terrorist or spy, someone called by a terrorist suspect, or potentially somewhat broader searches, such as calls made from a building where terrorist activity is suspected of taking place.

Improve transparency of current programs

If none of the options above are taken to limit the data collected, perhaps the least we could expect is a better understanding of what sort of data collection is being done in our name.  Here are some of the options available to accomplish this:

  1. Declassify Foreign Intelligence Surveillance Court (FISC) decisions interpreting Section 215 of the PATRIOT Act.  Introduced today as a bill in the Senate by a bipartisan group of eight Senators, including Minnesota Sen. Al Franken, this bill would compel the release of these decisions, so the legal logic could be evaluated and debated.  President Obama could also choose to do this via executive order.
  2. Release more details about how these programs work.  Can the NSA listen in on calls?  If so, when and why?  What is the standard for accessing the collected call metadata?  How long is the data stored?  Has the data ever been accessed for “routine” police work, or is it access limited to solely terrorism/national security related issues?  How are the programs audited for potential abuse?
  3. Permit court challenges towards these programs to move forward.  Multiple lawsuits have been filed against the government over warrantless wiretapping and data collection, but all have failed to reach the trial phase.  This is because the government (under both the Bush and Obama Administrations) have fought these cases on a standing issue.  What this means is that the government has alleged that the persons bringing the lawsuit can’t prove that their data was collected or their calls listened to, so they can’t prove they were harmed by the activity.  With no harm, they don’t have standing to sue in court.  The Verizon allegations — which cover millions of Americans — may make it impossible for the Department of Justice to continue these sorts of claims going forward.  If the Administration feels they are on solid legal ground with these programs, they should allow these cases to go to trial and win them definitively.

None of these six ideas provide a definitive firewall between government and your personal data, but they are practical approaches that could work incrementally to improve the current situation.  Getting them accomplished, though, will require application of political pressure on politicians in both parties.  Calls and e-mails to your Senators and Representatives will help keep the ball moving forward.

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Watching the Watchmen: the bipartisan failure on privacy

The revelations about the NSA spying program have set off a firestorm of partisan finger-pointing (such as this from late last week).  The reality, though, isn’t terribly complex.  Both parties are responsible for selling your privacy down the river with these sorts of programs.  There have been five key votes since 2001 that have been responsible for these programs.

The pattern shows that it doesn’t matter who’s in charge of the Presidency or Congress.  Washington D.C. will vote to take away your privacy, while fighting to make more and more of their actions secret.  The solution to this issue can’t be solved by switching which party is in charge — but rather by a sustained effort to keep pressure on both parties to do the right thing.  We must remain vigilant.

Below is a chart that shows the bipartisan failure on this issue, including votes by Minnesota’s Congressional delegation.  Click on the chart to see a larger version.

bipartisanfailure

Data sourced from THOMAS.gov

Ortman back from War College: firing wildly and with shiny tap-dance shoes

As we mentioned earlier in the week, State Senator (and possible U.S. Senate candidate) Julianne Ortman spent the week at the Army War College’s National Security Seminar.   Part of a new Army recruit’s basic training regimen includes learning how to shine shoes.  Well, it seems Ortman may have taken a lesson or two while there because she came back ready to attack and with shined-up and ready-to-go tap dancing shoes.

Earlier today, Ortman fired off several rounds of criticism at U.S. Senator Al Franken on Twitter, which was countered by myself and a few others — not to defend Franken (because he and the rest of Congress have a lot to answer for), but rather to ask Ortman what she would have done instead.  After all, it’s easy to criticize, but harder to advocate alternatives.   We saw this in effect during this legislative session’s budget battle, where Republicans never articulated an alternative budget.

Did Franken “hide” his knowledge of the NSA program?

Ortman’s initial attack against Franken called out the Senator for “hiding” the NSA program.  As a member of the Judiciary Committee, Franken had been briefed on the program to some level of detail.  Well, it is certainly true that Franken did not comment publicly on this topic until yesterday.  Why is that?  Because it was illegal for Franken to discuss it publicly. 

Section 215 of the PATRIOT Act modifies Section 501 (d) of the Foreign Intelligence Surveillance Act as to say:

“No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

Even worse, the briefings that lawmakers received on such programs were subject to unusually stringent security.  Lawmakers were not allowed to take notes, staffers were not allowed to attend, and per the provisions of the law stated above, the lawmakers were prohibited from talking about the programs.

So did Franken “hide” his knowledge of the programs?  No.  Did he do enough to push back?  The record on that is unclear.  Two Democratic Senators, Ron Wyden of Oregon and Mark Udall of Colorado, have been pushing the limits on these programs, obliquely hinting that there was something afoot.

Ortman seems to be suggesting that Franken should have done more.  Perhaps that’s true.  But one can only imagine if Franken had violated the law and revealed details of a classified national security program.  I sincerely doubt that Ortman would be saluting his whistleblowing — rather, she’d be crying about Franken putting our national security at risk.

Ortman goes on to make an additional charge:  namely, that the PATRIOT Act didn’t authorize such programs.  Unfortunately, Ortman provides no basis to back up her claims that have any merit.  And, sadly, she tap-dances around any of the direct questions asked of her — would she have voted for the PATRIOT Act and FISA modifications?  What is her argument for why these programs were prohibited?  Where was her outrage when these programs were authorized under a Republican administration? Does she think Franken should have broken the law and spread details of these programs?

While I haven’t attended the National Security Seminar, I can only imagine such brazenly partisan behavior probably isn’t considered in our nation’s best interest.  Let’s hope that if Ortman does run against Franken that she finds some lines of attack that aren’t based in distortions and falsehoods.

Here’s the entire exchange, so you can judge for yourself:

Congress, take back the wheel: NSA collection of phone numbers isn’t new

The news headlines are all aflutter this morning about the Guardian UK’s publication of a Foreign Intelligence Surveillance Court order requiring Verizon to turn over on an ongoing basis the metadata (phone numbers, time and length of calls, location, etc. — but no subscriber information) of all calls where at least one party was in the United States.

The practical impact of such a request is that the federal government has a record of every phone call made on the Verizon network, with enough information to identify who the caller is in at least 95% of the cases.  (Based on the metadata, it’s rather easy to figure out the identity of the caller.)

The court order in this case was signed by U.S. District Court Judge Roger Vinson, a Reagan appointee.

The sad reality, though, is that these programs that collect huge amounts of data aren’t new. They’ve just been largely ignored by the media — in both the Bush and Obama Administrations.  We know, for instance, that the federal government began similar activities shortly after 9/11 and the program in its current form has been ongoing since 2006.  The government’s ongoing efforts to keep such programs as secret as possible have thwarted attempts by the media and civil liberties groups to get to the bottom of the story.

What we see today is the result of a sad bipartisan abdication of responsibility by the United States Congress.  In the wake of 9/11, they passed the PATRIOT Act, which gave the executive branch broad powers to conduct such surveillance.  The PATRIOT Act passed Congress with broad bipartisan support in 2001 (Senate vote was 98-1, House vote was 357-66.), and was reauthorized in 2005, 2009, and 2011.

(As an aside, the powers in the PATRIOT Act were far broader than those requested by President Clinton in the wake of the Oklahoma City bombing.  Congressional Republicans were nearly universally opposed to Clinton’s plan and never let it out of committee.  Six years later, Republicans represented just two of the 67 Congressional “no” votes for the PATRIOT Act.)

Section 215 of the PATRIOT Act gives the federal government broad powers to ask for such information.  Unlike a traditional warrant where the standard is probable cause that the target was involved in a crime, the government only needs to show “reasonable grounds” that the requested information was “relevant to an authorized investigation . . . to obtain foreign intelligence information. . . or to protect against international terrorism or clandestine intelligence activities.”

Once the 2006 revelations of the first iteration of this data collection program came out, Congress did take action:  to make it perfectly clear that they saw the program as fully legal.  In 2007 and 2008, Congress passed bills that placed the program under the supervision of the Foreign Intelligence Surveillance Act, expanded its reach to cover purely domestic calls, and gave telecom companies retroactive immunity from damages resulting from the breach of privacy.  Reauthorized in 2011, these powers are now scheduled to sunset in 2017 if no Congressional action was taken.

After 9/11, a terrorism act of unprecedented boldness and effectiveness, it may have made some sense to give the executive branch the expansive powers of the PATRIOT Act to collect information to adequately respond to the Al-Qaeda threat.  Nearly 12 years later, though, we have a clearer picture of the threats we face and the tools we need to respond to them.  We also have gained perspective on what we may be giving up in order to secure the notion of security.

It’s time for Congress — politicians on both sides of the aisle need to work together on this one — to take back the wheel from the executive branch on these sorts of issues and craft some reasonable limits that prevent wholesale collection of data from individuals of the nature seen in this example.  This is Congress’s job, and we should expect them to get it done.

And while we’re at it, let’s not also forget who else has this data in question:  Verizon.  Now, there’s little we can do to prevent them from collecting said information other than not use their service or talk to someone who does, but what we can do is make sure that they — and other telecom companies — have to follow strict standards about how it is used.  Companies are using this information already, selling it to other companies and using it to market their own products to you.  Congress should be vigilant to make sure your data is not abused and your privacy not encroached upon.

Get to the appoint: Chaska Ward 1 looking for a new councilor and other news

Chaska City Councilor Scott Millard resigned his seat effective at the end of the May 20 City Council meeting, and the Council has chosen to appoint a replacement to hold the seat through the end of Millard’s term.  The seat will be up for election in 2014.  Ward 1 residents who are interested in the position are welcomed to pick up an application package at City Hall (inexplicably, there’s no information on this process on the city website’s homepage).  Applications are due back by June 12, and applicants will interview with the Council on June 17.  The appointment will be made at the July 1 City Council meeting.  Don’t know if you live in Ward 1 (the southwest ward)?  Check out this map to see where to fall among the city’s four wards.  Per the Chaska Herald, former Ward 1 Councilor Gino Businaro has indicated he intends to apply.

In other news:

  • State Senator Julianne Ortman (R-Chanhassen) is attending the 2013 National Security Seminar at the U.S. Army War College this week.  Certainly such news can (and will) be viewed within the prism of other rumors.
  • Last week was a crazy week for politics in the Sixth Congressional District (which covers Carver and central and western Carver County) as both U.S. Rep. Michele Bachmann and DFL challenger Jim Graves pulled out of the 2014 race.  Former State Representative, current talk show host, and 2010 governor’s race loser Tom Emmer seems poised to jump in the race, making him the leading contender for the GOP nomination.  Meanwhile, no names have emerged on the DFL side thus far.  The Sixth is the strongest Republican district in the state, so there’s a thin bench of state legislators to pick from.  St. Cloud’s Tarryl Clark, who lost to Bachmann in 2010 before failing to secure the DFL nomination in the Eighth Congressional District in 2012, is sure to come up as a possibility.  State Auditor Rebecca Otto also lives in the Sixth, but is considered unlikely to run.  Graves would have likely stood a stronger chance to win the seat given the fundraising he’s already accumulated, which makes his decision curious.  Politicians who fear defeat are unlikely to make a difference in the long run, so perhaps Graves’s decision is less of a loss to Democratic hopes than thought.

It’s not news when the train doesn’t wreck

With the central element of the Affordable Care Act (ACA) — the health care exchanges — slated to go online in October, there’s been a lot of concern about how these exchanges will be implemented.  17 states (including Minnesota) have elected to build their own exchanges, 27 states are defaulting to the federal exchange, and seven states are doing a hybrid model based on the federal exchange.

Opponents of the law, naturally are going all gloom-and-doom on the implications (even going so far as to take a quote by Democratic Senator Max Baucus where he worried about a “train wreck” out of context to further their cause).

But what if it doesn’t turn out to be a train wreck after all?  There have been some interesting developments in recent weeks that lead one to believe that strong, proactive management of exchanges by states can lead to positive results.

In Maryland, the largest insurer in that state (Care First) proposed a shocking 25% increase in premiums for 2014, which was widely cited as a troubling statistic for the ACA.  But nearly every other insurer in the state has proposed premium increases below 10%.  Care First either stands to lose a significant amount of market share, or they’re going to have to lower their rates.

In California, meanwhile, proposed premiums on their health care exchange have come in significantly lower than predicted.  2009 Congressional Budget Office projections anticipated that a “silver” plan (one that covers 70% of expected health care costs) would have a yearly premium of $5,200, while an actuarial firm projected an annual premium of $5,400.  When the actual prices were released yesterday, the actual average yearly premium for a “silver” plan is going to be about $3,300, or 35% lower than the CBO projection.

Oregon’s health care exchange is seeing similar patterns to Maryland.  After releasing the costs for all of the plans that will be on its exchange earlier this month, two large insurers have asked to come back and lower their prices after discovering that some competitors were pricing the same coverage for less than half the cost.

Meanwhile, we’ve seen evidence that health care inflation has been slowing substantially.  Provisions of the ACA have contributed to this trend and further policies, such as increased use of competitive bidding for Medicare-paid medical equipment slated to roll out between now and 2016, should only continue it.

These sorts of things should provide us here in Minnesota with hope that our health exchange — named MNSure — will be able to deliver coverage to citizens at a reasonable cost.  Minnesota has always worked hard to give our citizens access to health care and that should only get better under the ACA.

From a political perspective, we too should also remember that what voters tend to value about these sorts of programs is the real-world impacts on their lives.  Opponents of Medicare thought that implementation problems (that did happen) would end up undermining the program and resulting in its repeal.  Opponents of Medicare Part D thought the same thing.  In both cases, what opponents of those programs discovered is that voters ultimately liked the fact that they were guaranteed health care as a senior citizen and that they liked programs that helped them pay less for their prescriptions.  Outright repeal of these programs today is essentially unthinkable.

Ultimately, I think we’ll find the fact that the ACA ensures that you’re always going to have access to our health care system in a reasonably affordable way is going to outweigh any implementation problems at the beginning of the program. In fact, if states that are actively managing their exchanges end up producing better results, it may become a political liability for states that have chosen to actively fight implementation of the law.  After all, if dysfunctional California can build a working exchange with lower-than-expected health insurance premiums, why can’t Texas?

[Image courtesy of the Alexandria Echo Press, is of a 1904 train wreck in Osakis.]

Ortman faces uphill climb in potential race against Franken

Public Policy Polling released the first detailed polling on the 2014 U.S. Senate race today.  It shows that U.S. Senator Al Franken is — as of today, anyway — in pretty good shape 17 months out from the election.

Franken currently holds a +9 in his job approval ratings (51% approve vs. 42% disapprove) which is a solid rating for an incumbent heading into a re-election campaign.  Franken also currently holds at least a 15-point lead against any of the possible challengers polled.  Businessman Mike McFadden (the only potential candidate who has publicly expressed interest in the race) and Hennepin County Sheriff Rich Stanek trail Franken by 15 points, while State Senator Julie Rosen trails by 16 and U.S. Representative Michele Bachmann, radio talk show host Jason Lewis, and Chanhassen’s own State Senator Julianne Ortman trail Franken by 17.

There’s not a lot of good news in the polling data for Ortman.  Ortman’s name recognition is low (80% didn’t know who she was), but among those who did know her, almost four times as many had an unfavorable opinion as had a favorable opinion.  Those numbers gave her the lowest favorability numbers among the potential candidates in the poll.  Worse, she had an unfavorable opinion among Republicans and self-identified conservatives who knew who she was.  Franken leads Ortman by 29 points among women and by four points among men (even though Franken polls -8 in job approval among men).  However, her low name recognition does give her the opportunity to introduce herself on her own terms to voters.

Numbers like these help explain why Ortman may have felt the need to take time from the end-of-session rush last week to try and blast Franken over the IRS investigations of Tea Party groups.  If she intends to run, she needs to drive name recognition and establish herself as a credible contender because based on the polling numbers and Franken’s formidable fundraising — it’s going to be an uphill battle.

It’s totally not about that

State Senator Julianne Ortman held a press conference today to try and finger U.S. Senator Al Franken for playing a role in the current controversy over the Internal Revenue Service (IRS) giving unwarranted scrutiny to certain conservative 501(c)(4) groups.

In 2012, Franken and a group of other Democratic Senators sent two letters to the IRS, requesting that they give added scrutiny to 501(c)(4) groups.  Both progressive and conservative organizations had been setting such groups up because they are tax-exempt and not subject to campaign finance disclosures.

You can see the letters at the links below:

February 2012 letter

March 2012 letter

In each, the Senators in question ask the IRS to scrutinize all 501(c)(4)s.  Ideology doesn’t come up in either letter.

So, let’s sum up the argument here.  Ortman is asking us to believe that the letters from 2012 which called for additional scrutiny to be applied to all 501(c)(4)s are significantly responsible for IRS misbehavior that began in 2010 and was actually uncovered and stopped after the letter was sent.  Not even the reliable conservatives at Powerline are buying that one.

Why, then, would Ortman go to the trouble of calling a press conference to highlight this non-news with no real relation to her role as a State Senator?  Oh, yeah:

When asked about such a thing, Ortman played the “who me?” card.

Uh-huh.  It’s totally not about that.

And let’s not forget that Ortman has never exactly been shy about sending letters of her own demanding action by other parts of government.  Earlier this session, she asked Attorney General Lori Swanson to break from usual practice and preemptively give a ruling on whether legislation was constitutional or not.  Last session, Ortman demanded that the Chief Justice of the Minnesota Supreme Court investigate the handling of family cases in the First District.

So it seems that Ortman’s outrage over legislative letter-writing is rather subjective.  Just remember, though, about those 2014 rumors:  it’s totally not about that.

Senate passes marriage equality; Ortman votes no

The Minnesota State Senate today passed the marriage equality bill by a vote of 37-30, following four hours of debate.  State Senator Julianne Ortman (R-Chanhassen) voted no on the issue.  Only one Republican, Senator Brandon Petersen, voted in favor of the bill, while three DFL Senators voted no (Dan Sparks, Leroy Stumpf, and Lyle Koenen).

senatemarriage

Governor Mark Dayton has indicated he will sign the bill, and a signing ceremony is planned for 5 p.m. Tuesday afternoon on the South Side Capitol Steps.  Minnesota will be the 12th state to institute marriage equality.

Rumors were swirling before the vote that Ortman, who had been consistently opposed to marriage equality in recent sessions, may be reconsidering her position.  At times during the debate, she was spotted conferring with Senator Scott Dibble, the bill’s author.  Hanging over Ortman’s vote was the notion that she might be a candidate for higher office in 2014.  Recent speculation has indicated that she may be looking at the race for U.S. Senate against Al Franken.

 

The Republican base is strongly opposed to marriage equality.  Polling from January shows 79% disapproval among Republicans, which likely makes the path to endorsement difficult for a marriage equality supporter.

Shooting Ourselves In The Foot: Breaking Down The Sequester

Barring a last-minute deal between President Barack Obama and Republican Congressional leaders, it appears that the sequester — $85.3 billion in spending cuts for this fiscal year (and a total of $1.2 trillion in cuts over the next decade) — will be implemented beginning March 1.

What will the sequester mean?  Let’s take a look.

Details of the cuts

$85.3 billion represents about 2.4% of total government spending.  But the impacts of the sequester will be far more impactful than that, because of the programs that are exempted from the spending cuts.  Additionally, five months of the federal fiscal year has already passed, meaning that the full year value of the cuts have to be taken in a seven-month timeframe.

Half of the spending cuts will come out defense.  $42.7 billion represents 7.8 percent of the defense budget on an annual basis, but compressing those cuts into seven months will result in a 13% cut in defense spending the rest of the year.  There are no significant exceptions to the defense spending cuts, meaning that essentially all items in the defense budget will get an across-the-board cut.  This includes operations in Afghanistan and military aid for Hurricane Sandy relief.  Additionally, President Obama has indicated he will protect soldiers from receiving pay cuts, which means all other programs will see yet larger cuts to make up the difference.  Finally, restrictions in the sequester language mean that the Administration is prohibited from cutting the pay of civilian defense employees and must instead reduce headcount.

The other half of the spending comes out of three categories:  domestic discretionary spending, domestic mandatory spending, and Medicare.  Together, these categories make up the remaining $42.7 billion.  Let’s talk about what is excluded from these three categories first — the list is long and includes Social Security, non-administrative expenses in the Veterans Administration, refundable tax credits (like the Earned Income Tax Credit), Children’s Health Insurance Program, standard unemployment benefits, Medicaid, and most other programs supporting low-income families.  These programs represent over $2 trillion in annual government spending, meaning that all of the cuts are being taken against spending that represents about 40% of the federal budget.

Domestic discretionary spending cuts will total $26.4 billion, representing a 5.2% cut on an annual basis and an 8% cut over the next seven months.  These cuts will hit areas of the budget including education funding for programs like Head Start, will require closing the air traffic control towers at several state airports, federal funding for “Meals on Wheels” programs, and grants for environmental projects.

Domestic mandatory spending will be cut by $5.1 billion, also representing a 5.2% cut on an annual basis and an 8% cut over the next seven months.  These cuts will impact farm subsidies, extended unemployment benefits, and some federal health care programs, such as the Indian Health Care program.

Finally, Medicare will see $11.2 billion in cuts, representing a 2% cut.  Medicare cuts will not impact beneficiaries of the program, but rather reflect a cut in provider and Medicare Advantage reimbursement rates.

What Will Happen?

The budget cuts in the sequester are really just about the worst kind of cuts that could be made.  First off, they are arbitrary and across-the-board.  The President has no discretion on how to distribute the cuts, meaning that effective programs are cut at the same rates as programs that have less impact.  Second, there are too many exceptions.  The cuts, as noted above, represent a small portion of the total budget, but since a majority of the budget is excluded from the cuts, the programs that are hit are hit hard.

These cuts are also going to have major negative impacts on employment and economic growth.  The Bipartisan Policy Center projects a loss of 1 million jobs and 0.5% of gross domestic product.  Other estimates claim job losses in excess of 700,000.  Implementing the sequester is going to seriously damage a still fragile recovery and sluggish labor markets.

Worst of all, the combined effect of all of these impacts mean that we are unlikely to get any meaningful deficit reduction as a result of the sequester.  Slower economic growth means that the economy will produce less tax revenue, making the deficit situation worse than before.  As evidence of how this is possible, one need only look at what is occurring in Europe.  Following rounds of budget cuts, the United Kingdom (which is on the verge of a triple-dip recession), France, and Spain have all missed their deficit reduction targets.  Fed chairman Ben Bernanke warned of the same possibility before the House Financial Services Committee today.

Additionally, the fact that health care and entitlement programs are essentially left off the chopping block means that these cuts do practically nothing to change the long-term debt picture, because that is where the majority of spending (and spending growth) will happen over the coming decades.

The upshot here is that the failure of our political system to take the right path regarding our financial future has us on the verge of a serious self-inflicted blow to our economy.  One might think that the risks here would be enough to get folks looking beyond their own narrow political interest.  But apparently not.  There’s a reasoned approach to be had here, maintaining levels of spending today to preserve the economic recovery while instituting reforms in the medium- to long-term in order to bring debt levels down to a sustainable level.  Who’s going to set aside their party’s political interests to protect the jobs of hundreds of thousands of Americans?

General Sources:

Bipartisan Policy Center (explainer)

Washington Post (state-by-state impacts)

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