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-
- Computer underground Digest Sun July 31, 1994 Volume 6 : Issue 69
- ISSN 1004-042X
-
- Editors: Jim Thomas and Gordon Meyer (TK0JUT2@NIU.BITNET)
- Archivist: Brendan Kehoe
- Retiring Shadow Archivist: Stanton McCandlish
- Shadow-Archivists: Dan Carosone / Paul Southworth
- Ralph Sims / Jyrki Kuoppala
- Ian Dickinson
- Copper Ionizer: Ephram Shrustleau
-
- CONTENTS, #6.69 (Sun, July 31, 1994)
-
- File 1--Memphis convicts Calif. (Am Action) BBS of "Porn"
- File 2--Response to AA BBS Verdict (fwd)
- File 3--AP bungles my AA BBS comments :)
- File 4--The Internet Reacts to the Am. Action BBS (fwd)
- File 5--Some Thoughts on the Amateur Action Verdict
- File 6--it's not just computer porn either
-
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- ----------------------------------------------------------------------
-
- Date: Sat, 30 July, 1994 22:18:43 CDT
- From: CuD Moderators <cudigest@mindvox.phantom.com>
- Subject: File 1--Memphis convicts Calif. (Am Action) BBS of "Porn"
-
- ((MODERATORS' NOTE: Robert and Carleen Thomas, operators of Amateur
- Action BBS in California, were tried and convicted of sending
- "pornography" across state lines by a Memphis jury. Relevant case
- documents, including the original indictment, can be found in CuDs
- #5.33, 5.35, and 5.53. We thank the posters who send over the
- following two press reports, which emphasize the sticky problem of
- "local standards" applied to the Net)).
-
- Source: Chicago Tribune, July 29. Sect 1, p. 6
-
- COUPLE GUILTY IN SALE OF PORN VIA COMPUTER
-
- A husband and wife were convicted of distributing pornography via
- computer Thursday in a case that raised questions about how to apply
- federal obscenity law to the information superhighway.
-
- ((The story notes that Robert and Carleen Thomas, of Milpitas,
- California, were each convicted on 11 counts of transmitting
- obscenity over interstate phone lines on the members-only BBS.
- They can be sentenced to up to five years in prison on each count and a
- $250,000 fine)).
-
- During the weeklong trial, jurors were shown photographs carried
- over the Thomases' bulletin board featuring scenes of bestiality and
- other sexual fetishes. The images were available, for a fee, to
- computer users around the world.
-
- ((The story mentions that a postal inspector testified he joined the
- Amateur Action BBS under a fake name and received sexually
- explicit pictures on his Memphis computer. The defense, says the
- story, argued that the prosecutors "shopped around" for a place to
- try the case where a "conservative jury might be found")).
-
- "This case would never have gone to trial in California," said
- defense attorney Richard Williams, who plans an appeal.
- Assistant U.S. Atty. Dan Newsom said the trial was held in Memphis
- because pictures carried on the bulletin board were received here.
- In this age of international computer networks, the federal trial
- raised questions about a 1973 Supreme Court ruling that obscenity must
- be judged according to local community standards.
-
- ((The story describes the opinion as designed to let local
- citizens determine community standards))
-
- "But it may not work anymore," he said from his office in
- Washington. Under that standard, federal juries in the most
- conservative parts of the country could decide what sexually
- explicit images and words get on the information superhighway,
- Bates said. Ultimately, the issue will probably wind up back at
- the Supreme Court.
-
- ==================================================================
-
- Wire story circulating on Usenet:
-
- MEMPHIS, Tenn -- A federal jury convicted a California couple Thursday
- of transmitting obscene pictures over a computer bulletin board.
-
- The case has raised questions, in this age of international computer
- networks, about a 1973 U.S. Supreme Court ruling that defines
- obscenity by local community standards.
-
- "This case would never have gone to trial in California," defense
- lawyer Richard Williams said.
-
- Prosecutor Dan Newsom, an assistant U.S. attorney, said the trial was
- the first he knows of for computer bulletin board operators charged
- under federal law with transmitting pornography featuring sex by
- adults.
-
- Robert and Carleen Thomas, both 38, of Milpitas, Calif., were
- convicted of transmitting sexually obscene pictures through interstate
- phone lines via their members-only Amateur Action Bulletin Board
- System.
-
- The Thomases were convicted on 11 criminal counts, each carrying
- maximum sentences of five years in prison and $250,000 in fines.
-
- Thomas was acquitted on a charge of accepting child pornography mailed
- to him by an undercover postal inspector.
-
- The Thomases refused to comment after the verdict. They remain free on
- $20,000 bond to await sentencing, for which no date was set.
-
- Williams said his clients will appeal, arguing the jury was wrongly
- instructed on how to apply the Supreme Court's standard on obscenity.
-
- The trial raised questions of how to apply First Amendment free-speech
- protections to "cyberspace," the emerging community of millions of
- Americans who use computers and modems to share pictures and words on
- every imaginable topic.
-
- Williams argued unsuccessfully before trial that prosecutors sought
- out a city for the trial where a conservative jury might be found.
-
- During the weeklong trial jurors were shown photographs carried over
- the Thomases' bulletin board featuring scenes of bestiality and other
- sexual fetishes. Williams argued this was voluntary, private
- communication between adults who knew what they were getting by paying
- $55 for six months or $99 for a year.
-
- Their conviction also covers videotapes they sent to Memphis via
- United Parcel Service. The videotapes were advertised over the
- bulletin board.
-
- ------------------------------
-
- Date: 28 Jul 1994 22:12:20 -0500
- From: karl@MCS.COM (Karl Denninger)
- Subject: File 2--Response to AA BBS Verdict (fwd)
-
- In article <118598@cup.portal.com>,
- H Keith Henson <hkhenson@cup.portal.com> wrote:
- >CNN this noon had a report that the Thomas' were found guilty. As I
- >understand it, not on all charges. Will get the results and post them
- >as soon as I can get the data. Keith
-
- Correct.
-
- They were found guilty of 11 counts, each carrying a 10 year jail term
- and a $250,000 fine!
-
- That's 2.5 MILLION dollars and 110 years! Even with time off for good
- behavior and all, if this case stands they're both finished and, IMHO,
- so is much of the erotica available on the net in the US for those
- sites which are interstate.
-
- The *only* count which they got off on was the kiddie porn charge.
-
- This is a serious case folks. We're going to be talking to the
- lawyers IMMEDIATELY here, as the ramifications of this may be that we
- can no longer sell accounts to users across state or even local
- boundary lines -- or we may have to drop all the erotic material on
- the net!
-
- Within Chicago what is on the net wouldn't violate community
- standards, especially given what I can rent at the local video store
- (I live and work in the middle of Lakeview, which is known to some as
- "boys town". Draw your own conclusions.) :-) In Memphis, on the other
- hand.......
-
- NETCOM in particular is in bad shape on something like this, what with
- their presence nationally......
-
- NOT good. Very, very not good.
-
- And some of you thought Copyright was a problem? Try *this* on for
- size!
-
- ------------------------------
-
- Date: Sun, 31 Jul 1994 19:02:26 GMT
- From: entropy@world.std.com (Lawrence Foard)
- Subject: File 3--AP bungles my AA BBS comments :)
-
- The AP wire finally arrived on world. I wish they would e-mail for
- clarification before releasing them, in one place they have me as an
- anonymous person from Boston, another place as a person from Brookline Ma,
- who runs a BBS :)
-
- I was going to be running an internet POP for someone, but decided not
- to because of this, I don't presently have a BBS.
-
- Unfortunitly it also failed to bring up the reason for the concerns.
- The reasons why this is a concern:
- 1) A BBS operator in any area of the country now must limit the
- contents of the BBS to that which is acceptable in the most backward
- area of the country.
- This makes BBS operators answerable to officials which they had no
- say in electing, and laws which they have no say in through the
- democratic process. If BBS operators are to be held to the laws of all
- towns and states at the very least they should be allowed to vote in all
- of them. (no out of state sales tax...)
- Its completely impractical, something which appears totally harmless one
- place might be illegal someplace else. Lets say that the use of an
- electro-ejaculator (sp?) for getting semen from bulls is discussed on
- a farm BBS. In another state this could be painted as sex with an animal,
- and a farmers story of doing this might be enough to land him in jail.
-
- 2) The operator of the BBS didn't cause pornography to cross state lines,
- the user in Tenn paid for the phone call and entered the commands which
- caused it to cross state lines. The user should be responsible. Because
- an electronic connection could cross several networks, there is no hope
- of being able to know where the end user is. Even with caller ID its
- possible that the person is using a local dialout from a long distance
- data carrier. On the internet its even more difficult since someone
- can easily cross several machines in many states or countries.
-
- 3) There is no precedent at this time (that I'm aware of) protecting
- an internet provider. Unlike a BBS operator internet providers cannot
- control the content of what users acquire through the net. While it
- can be hoped that this lack of control will provide protection, there
- is no guarantee that it will (Mike?). A person could download every bit of
- pornography available anywhere in the world, and then turn around
- and charge the internet provider with 1000's of counts, amounting to
- 1000's of years in jail. To provide internet access at this time is
- effectively playing russian roulette, if you lose you might as well
- be dead.
-
- 4) In the case of really illegal porn, kiddy porn etc. where children are
- exploited to make it, action should be taken against those and only those
- who upload/post it in the first place, it is impossible for anyone else
- on the internet to prevent the transmission of data. The volume of data
- traveling on the net is beyond the ability of any one human, or even
- dozens to filter through.
- In the case of kiddy porn the only responsibility of sysops should be to
- provide log file etc. to law enforcement, so that they can trace it to
- the source and hopefully ultimately catch those who made it. In other
- words internet providers should be treated the same way a long distance
- phone carrier is, since neither can or should regulate the content of
- the data they carry.
-
- 5) The standards by which something is judged to be obscene are absurd,
- the first amendment says nothing about making exceptions for material
- which some may find offensive. I think many religious broadcasts could
- easily be found offensive by the standards of the Castro area
- in SF, why can't Pat Robertson go to jail in CA for transmitting
- obscene material (by local standards) into the Castro?
- Current obscenity laws violate the freedom of speech and the freedom of/
- from religion because they only consider things offensive to certain
- Christian sects to be obscene.
- Kiddy porn is wrong because children are hurt when it is made, but I
- can see no rational reason why any pictures/stories/info of any sort
- made by consenting parties should be restricted.
- I hope the supreme court will one day realize the absurdity of
- this loophole.
-
- AP reporters:
- Please feel free to use any of this, but if there is anything that
- you have the least doubt about please e-mail or post questions
- instead of publishing incorrect or incomplete info.
-
- ------ Call the skeptic hotline 1-900-666-5555 talk to your own personal .
- \ / skeptic 24 hours/day. Just say no to victimless crimes. . .
- \ / High quality Linux application development available. . . .
- \/ Violence is a lousy substitute for sex and drugs. . . . .
-
- ------------------------------
-
- Date: Sun, 31 Jul 1994 16:12:55 PDT
- From: Anonymous <cudigest@mindvox.phantom.com>
- Subject: File 4--The Internet Reacts to the Am. Action BBS (fwd)
-
- **Here's the summary of an AP wire story for CuD readers**
-
- Hours after a couple was convicted of sending images of bestiality
- and sexual fetishes over a computer bulletin board, the Internet was
- humming with warnings and protests.
-
- "If this case stands, you can bet there will be a hell of a lot
- more prosecutions on the same basis in extremely short order," Karl
- Denninger of Chicago wrote Friday on the computer network.
-
- ((The story summarizes the case))
-
- Even an 8.0 earthquake shaking the entire U.S. would do less damage
- to Internet than the ruling, a Boston user wrote in an anonymous
- message.
-
- Many users wondered on-line about what the 1973 Supreme Court rule
- allowing local communities to define obscenity means in cyberspace.
-
- ((The story notes that some people say the decision is inapplicable))
-
- "This case. . .has one community attempting to dictate standards
- for the whole country," wrote Mike Godwin, a lawyer for the Electronic
- Frontier Foundation, a think tank in Washington.
-
- One man said he planned to end the bulletin board he produces for a
- fee because the ruling makes it the legal equivalent of playing
- Russian roulette.
-
- "I'm pulling out of it as of now, and believe me I need the money.
- ...but it would be safer to rob a bank. I might get out of jail before
- I'm 140 years old," wrote Lawrence Foard from Brookline, Mass.
-
- ((The story notes that BBSes are usually small scale businesses
- or hobbys carried on a larger system like the internet, which is
- a factual error, but what the hey.))
-
- Although most are free, some sexually oriented ones require a fee
- paid by credit card to attempt to screen out users under 18.
-
- ((More case summary))
-
- The case bodes ill for any American computer system that carries
- any sexually related material at all, many users said.
-
- ------------------------------
-
- Date: Sat, 30 Jul 1994 23:22:08 PDT
- From: Jim Thomas <jthomas@well.sf.ca.us>
- Subject: File 5--Some Thoughts on the Amateur Action Verdict
-
- Some readers might wonder why they should care about a decision that
- would seem to be simply an "open-and-shut" pornography case. We'll try
- to provide a few reasons.
-
- Robert and Carleen Thomas operated Amateur Action, an adult BBS in
- Milpitas, Calif. In Memphis, Tenn., Federal court this past week, a
- jury found them each guilty of transporting pornography by telephone
- across state lines. Robert Thomas was also charged with, but acquitted
- of, accepting child pornography sent to him by postal inspector David
- H. Dirmeyer (CuD coverage of the case can be found in CuD 6.09, 6.33,
- 6.35, 6.37, 6.43, 6.53, and 6.67). The handling of the case by the
- postal inspectors raised issues ranging from entrapment to "possible
- court fraud" (CuD 6.43), all worthy of discussion. However, what sets
- this case apart from any other is the fact that a citizen in one state
- was found guilty in another for actions that were not illegal in the
- first state.
-
- Amateur Action BBS was a members-only BBS accessible by telephone from
- anywhere in the world. It is a dial-in BBS, and not accessible from
- the Net. Callers were screened, paid a fee to join, and knowingly and
- willingly accessed the services of the board. By all accounts,
- callers were systematically screened to assure that no minors would be
- given access. The board specialized in providing graphic sexual
- images for all tastes. Some, perhaps most, people would find the
- extreme examples of the GIF files and other material, as well as their
- ASCII descriptions, repulsive. Repulsiveness, however, is not itself
- a crime, and in an earlier California legal dispute, the contents of
- the BBS were found not to be in violation of California law. Such
- images were, however, in violation of Tennessee law. Transportation
- of the images across state lines from California into Tennessee comes
- under Federal statutes, and the Thomases were therefore prosecuted on
- Federal Charges (See CuD 6.53 for the indictment). This is not simply
- "just another porn case," in which the alleged offenders took risks
- and lost. The case represents a means by which an act that does not
- violate the community standards in one jurisdiction can still be a
- criminal offense in another that has different standards. In the
- medium of cyberspace, this poses serious consequences. Here are a few
- reasons why:
-
- THE COMMUNITY CONCEPT: The U.S. Supreme Court established in Miller
- v. California that local communities may determine for themselves the
- standards by which a given work could be judged as obscene. In
- delivering The Court's opinion, Chief Justice Warren Burger wrote:
-
- Under a National Constitution, fundamental First Amendment
- limitations on the powers of the States do not vary from
- community to community, but this does not mean that there are, or
- should or can be, fixed, uniform national standards of precisely
- what appeals to the "prurient interest" or is "patently
- offensive." These are essentially questions of fact, and our
- Nation is simply too big and too diverse for this Court to
- reasonably expect that such standards could be articulated for
- all 50 States in a single formulation, even assuming the
- prerequisite consensus exists.
-
- ......
-
- It is neither realistic nor constitutionally sound to read the
- First Amendment as requiring that the people of Maine or
- Mississippi accept public depiction of conduct found tolerable
- in Las Vegas, or New York City.
-
- Miller functioned in part to allow The Court to avoid the thorny issue
- of defining obscenity. It also made it clear that communities could
- decide for themselves, within reason, the definition and application
- of standards. By this principle, The Court provided the means by which
- citizens in Memphis could follow a narrower standard than, say,
- citizens in California. Yet, the Memphis decision seems to violate
- this principle by imposing the standards of Tennessee on others
- outside of the jurisdiction.
-
- The news accounts of the conviction are consistent, and if consistency
- suggests accuracy, then it appears that the convictions in this case
- were solely because the contents of a BBS in California, which were
- legal in that state, were ACCESSIBLE from Tennessee. The Thomases did
- not physically transport their files, either personally or through an
- intermediary, into Tennessee. They merely made the means available so
- that someone FROM Tennessee could obtain them. This seems analogous
- to a person in State A, in which alcohol or cigarettes were
- prohibited, driving into State B, where they were legal, to obtain
- them, and then prosecuting on Federal charges the purveyor of the
- commodities in State B for making them accessible to people in State
- A. The nature of electronic communications makes this a less than
- perfect analogy, but the central point holds: A Tennessee resident
- must physically perform the acts to access an out-state source in
- order to obtain commodities and return them to the state in which the
- commodities were illegal. By this logic, "community standards" can be
- extended to, and enforced upon, communities with different standards.
- This seems to violate both the letter and spirit of the Miller
- decision.
-
- CYBERSPACE AS COMMUNITY: Another complex issue emerges. The concept
- of "community" as used in the Miller decision, denotes a geographical
- entity circumscribed by physical boundaries. Electronic communication
- challenges this. The concept of "cyberspace" suggests a broader
- definition, one that can co-exist within the more limited geographic
- conception, while retaining separate status because of its unique
- characteristics. A broader conception is not without precedent,
- because it has long been recognized by social scientists.
-
- By now, most of us realize that "cyberspace" is not a specific
- geographic or spatial location. Cyberspace is a metaphor for something
- that happens when we communicate with others by means of a personal
- computer and a modem. As we sit at the computer keyboard and magically
- etch our ASCII or gif mark for others to see, we feel as if we leave
- it somewhere, and that "somewhere" is simply a conceptually metaphoric
- way of identifying the experience of electronic communication.
- Cyberspace includes a variety of computer/modem mediated
- communication, ranging from Bulletin Board Systems (BBSes), Internet
- electronic mail, public access systems where people meet, shop, fall
- in and out of love, or carouse, electronic discussion groups (such as
- Usenet or the Bitnet hotlines), and real-time interaction, such as
- on-line "chat/talk" or IRC (Inter-relay chat), which allows
- simultaneous real-time interaction between numerous people.
-
- Because of the collective and social nature of much electronic
- interaction, a derivative metaphor, that of community, emerges. A
- community is simply a collection of people self-consciously
- co-existing within some identifiable boundary, be it physical (such as
- a city or a "community of nations"), normative (such as a "community
- of scholars") or ideological (such as an "invisible community" of
- anti-flouride activists). Communities create ways for sharing
- sufficient cultural expectations to bind participants into a minimal
- culture with shared norms and and give a means of access, entry, and
- exist. They provide criteria that provide a minimal identity,
- establish entry/exit routines, and include a means for distinguishing
- "insiders" from "outsiders." Cyberspace does all of this and more. As
- a consequence, cyberspace fits the existing definition of community
- long used by social scientists. Therefore, it's not unreasonable to
- begin pushing the conception of "community" beyond the limations
- imposed by, for example, the U.S. Supreme Court.
-
- Alleged undesirable acts of cyber-citizens do not "pollute" a
- geographic area with streetwalkers, porn-shops, drive-by shootings, or
- other immediate manifestations of the disapproved behavior. Behaviors
- exist in symbolic form only, in ASCII or in visual images, and
- although freely accessible, they are accessible only to those who
- consciously choose to access the symbols. Nasty words and pictures can
- even be accessed by the good folk of Memphis, Tennessee. If they
- choose. The citizens of a community with narrow views of propriety
- can access electronic media as easily as they can can traverse
- Interstate 80. Interstate 80, paid for by taxpayers, will take those
- good folk directly into San Francisco's North Beach, where they can
- watch "nekkid girls" and purchase merchandise to satisfy the wildest
- prurient interests. Granted, telephone lines are a bit easier to
- navigate than the interstate, but the point's the same: Using an
- established public infrastructure, whether highways or telephone lines,
- it's no problem to procure commodities that are licit in one community
- and physically transport them or their images back home.
-
- To recognize "cyberspace" as a distinct entity satisfying the criteria
- of "community" is hardly a novel or radical view. As a community,
- cyberspace needn't be homogenous (few communities are), peaceful (few
- communities are), or centrally governed (many communities are not). It
- need only satisfy the operational definition of "community" (which it
- does).
-
- There are likely those who would reject the notion of "cyberspace as
- community," falling back on the geographical criterion. But,
- "geography," too, is an arbitrary criterion, and one that has
- historically changed as new conceptions of identity and common
- interests have changed. The necessity of considering "cyberspace as
- community" is simply this: The concept of community is as much
- normative and symbolic as it is physical. To limit, for example,
- "community standards" to a narrow geographic locale when that locale
- exists as part of a larger community resembles the Church's
- proscriptions of Galilean thinking in the face of a dramatically
- changing society. The laws of Tennessee may be fully appropriate for
- the citizens of Tennessee, but they may not be shared by those who
- congregate in the community of cyberspace.
-
- JURISDICTION: What counts as a community is important because it
- frames the extent of jurisdiction and how norms and laws will be
- enforced, by whom, and upon whom. If cyberspace is a community, then
- the question of jurisdiction becomes imperative. Should policing be
- done by the citizens themselves (who have done a reasonably good job
- so are)? Should it be done by local geographic communities with power
- to regulate what their local citizens may or may not access in other
- areas? Should it be done by a centralized national or international
- authority? The Memphis decision seems to indicate that at least one
- geographic community believes that it should have the power to police
- at the local level what occurs globally: If citizens can access
- unacceptable symbols from a remote source, then that source should be
- shut down. The implications are serious. Some observers have argued
- that they cannot be too excited about a bunch of "smut dealers" being
- put out of business. But, these "smut dealers" were doing nothing
- illegal within their own jurisdiction.
-
- The principle of the decision extends beyond "smut." If, for example,
- it is lawful to post "anarchy files," radical policital literature, or
- extreme viewpoints or criticisms in one jurisdiction but not in
- another, then the danger exists that what is defined as illegal any
- where becomes illegal everywhere if it can be accessed electronically.
- The Miller decision was explicit in allowing local standards to govern
- local enforcement. But, it seems equally explicit in permitting or
- tolerating materials if those materials did not violate local
- standards. The Memphis decision not only challenged the community
- concept, but seemed to turn Miller on its head by saying that the
- lowest common denominator could become the universal standard of
- exception. And this is why we judge the case of crucial importance to
- all who use electronic media. What is legal in California and
- elsewhere now is subject to criminal prosecution.
-
- WHAT'S AT STAKE: Because the Memphis decision was a jury verdict and
- did not result in precedent-setting legal interpretation, the
- immediate impact may seem limited. But, if the case outcome stands and
- becomes a model for prosecuting undesirable materials elsewhere, the
- consequences are severe. If unchallenged, the decision means that
- prosecutors who see their mission as moral entrepreneurs can bring
- criminal charges in one jurisdiction against those who violate narrow
- community standards. For that reason, we see this is a free speech
- issue. The potential chilling effect resulting from similar cases
- could severely limit the availability controversial materials or
- reduce access to forums for discussion and dissemination of ideas.
- Sysops and sysads cannot possibly know the laws of all jurisdictions
- in which users of theirs systems reside. If fear of prosecution
- results in the closing of BBSes, in restriction of users based on
- geography, in restriction of files or discussions, in elimination of
- controversial Usenet news groups, or otherwise stifles freedom of
- expression, it will not be a blow simply for the cyber community. It
- will be a devastating blow for Freedom of Speech in society as well.
-
- ------------------------------
-
- Date: Sat, 16 Jul 1994 11:53:14 -0700
- From: haynes@CATS.UCSC.EDU(Jim Haynes)
- Subject: File 6--it's not just computer porn either
-
- Item in today's paper "800 purveyor faces obscenity charge" says a
- California-based sex-talk purveyor is to stand trial in Alabama next
- week on obscenity charges.
-
- "We have taken a vigorous stance in enforcing the anti-obscenity law,"
- said Assistant Attorney General Bruce Lieberman of Evans' special
- investigations division. The newspaper seems to have severely
- truncated the story, as "Evans" is never identified. The dateline is
- Montgomery, Ala. Says the defendant is Mark Carriere of Los Angeles,
- operator of "Mark III Entertainment"
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- End of Computer Underground Digest #6.69
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- ^Z
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