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Sandvig v. Sessions

United States District Court, District of Columbia

March 30, 2018

CHRISTIAN W. SANDVIG, et al., Plaintiffs,
v.
JEFFERSON B. SESSIONS III, in his official capacity as Attorney General of the United States, Defendant.

          MEMORANDUM OPINION

          JOHN D. BATES, UNITED STATES DISTRICT JUDGE.

         It's a dangerous business, reading the fine print. Nearly every website we visit features Terms of Service (“ToS”), those endless lists of dos and don'ts conjured up by lawyers to govern our conduct in cyberspace. They normally remain a perpetual click away at the bottom of every web page, or quickly scrolled past as we check the box stating that we agree to them. But to knowingly violate some of those terms, the Department of Justice tells us, could get one thrown in jail. This reading of federal law is a boon to prosecutors hoping to deter cybercrime. Yet it also creates a dilemma for those with more benign intentions. Plaintiffs in this case, for instance, are researchers who wish to find out whether websites engage in discrimination, but who have to violate certain ToS to do so. They have challenged the statute that they allege criminalizes their conduct, saying that it violates their free speech, petition, and due process rights. First, however, they must show that they have a sufficient injury to make it through the courthouse door, and that their suit is plausible enough to continue. For the following reasons, the Court finds that plaintiffs have standing, and that they can bring one (but not the rest) of their claims.

         I. BACKGROUND

         This case centers on a few sections of the Computer Fraud and Abuse Act (CFAA), a law dedicated to “deterring the criminal element from abusing computer technology.” H.R. Rep. No. 98-894, at 4 (1984). Plaintiffs directly challenge one section, referred to here as the Access Provision, which sweeps in the greatest amount of conduct. The Access Provision states that “[w]hoever . . . intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains . . . information from any protected computer . . . shall be punished as provided in subsection (c) of this section.” 18 U.S.C. § 1030(a)(2)(C). The CFAA defines “protected computer” to mean, among other things, “a computer . . . which is used in or affecting interstate or foreign commerce or communication.” Id. § 1030(e)(2)(B). This definition encompasses just about all computers hooked up to the Internet-including computers that house website servers. See, e.g., United States v. Nosal, 676 F.3d 854, 859 (9th Cir. 2012). The statute also defines “exceeds authorized access” as “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6). Thus, the Access Provision applies to anyone who purposely accesses an Internet-connected computer without authorization, or uses a legitimate authorization to receive or change information that they are not supposed to, and thereby obtains information from the computer.

         The CFAA provides for a fine and/or imprisonment for up to one year upon a first violation of the Access Provision, or up to ten years for any further offenses. Id. § 1030(c)(2)(A), (C). However, the punishment for an initial violation rises to a sentence of up to five years' imprisonment if the offense (1) “was committed for purposes of commercial advantage or private financial gain, ” (2) was “in furtherance of any criminal or tortious act in violation of the Constitution” or state or federal law, or (3) involved obtaining information valued at more than $5, 000. Id. § 1030(c)(2)(B). Thus, meeting one of these three conditions makes a first violation a felony; if none are met, the first violation is a misdemeanor.

         Plaintiffs in this case are four professors and a media organization: Christian W. Sandvig of the University of Michigan; Kyratso “Karrie” Karahalios of the University of Illinois; Alan Mislove of Northeastern University; Christopher “Christo” Wilson of Northeastern University; and First Look Media Works, Inc. (“Media Works”), which publishes the online news platform The Intercept. Compl. [ECF No. 1] ¶¶ 13-14, 16-17, 19. Plaintiffs are conducting studies to respond to new trends in real estate, finance, and employment transactions, which increasingly have been initiated on the Internet. Id. ¶¶ 15, 18, 55. Data brokers assemble consumers' information from myriad sources and place consumers into models that include racial, ethnic, socioeconomic, gender, and religious inferences about them. Id. ¶¶ 56-57. After brokers create consumer profiles, those profiles follow consumers around online through tracking technologies such as cookies. Id. ¶¶ 58-59. Tracking allows websites and advertisers to display content targeted at particular groups, based on consumers' inferred characteristics or the sorts of websites they visit. Id. ¶¶ 59-60. But plaintiffs are concerned, “[g]iven the . . . history of racial discrimination in housing and employment, ” that this technology may be “harnessed for discriminatory purposes.” Id. ¶ 61. They are also concerned that, “when algorithms automate decisions, there is a very real risk that those decisions will unintentionally have a prohibited discriminatory effect.” Id. ¶ 62.

         One way to determine whether members of protected classes are being discriminated against is to engage in “outcomes-based audit testing.” Id. ¶ 67. Such testing commonly involves accessing a website or other network service repeatedly, generally by creating false or artificial user profiles, to see how websites respond to users who display characteristics attributed to certain races, genders, or other classes. Id. ¶ 70. This method is similar to classical paired testing procedures, in which multiple people-identical but for one legally protected trait-apply for the same house or job. Such procedures are often used to uncover violations of housing and employment discrimination laws in the physical world. Id. ¶¶ 41, 50, 52.

         Plaintiffs plan to engage, and are engaging, in such audit testing. Sandvig and Karahalios are investigating whether computer programs that decide what to display on real estate websites discriminate against users based on race or other factors. Id. ¶ 82. They are writing a computer program that will create bots-automated agents that will each browse the Internet and interact with websites as a human user might. Id. ¶ 88. Each bot will create a number of distinct user profiles, each of which is called a “sock puppet.” Id. ¶ 89. Sandvig and Karahalios will program the bots to visit real estate websites and search for properties, while also engaging in behaviors correlated with members of a particular race. Id. ¶¶ 90-91. Sandvig and Karahalios will use an automatic data recording technique known as scraping to record the properties that each bot sees on the real estate sites. Id. ¶¶ 90, 92. They can then examine their data to determine whether race-associated behaviors caused the sock puppets to see different sets of properties. Id. ¶ 93.

         Similarly, Mislove and Wilson plan to conduct a study to see whether hiring websites' algorithms end up discriminating against job seekers based on protected statuses like race or gender. Id. ¶ 107. They will first use bots to crawl the profiles of a random selection of job-seekers to obtain baseline demographic data, then create fake employer profiles so that they can search for candidates and record how the algorithms rank those candidates.[1] Id. ¶¶ 114-17. They will also create fictitious sock-puppet job seeker profiles, and have the fictitious seekers-who will vary along different demographic axes-apply for fictitious jobs, to examine how the algorithms rank the candidates. Id. ¶¶ 118-19, 121-22. Mislove and Wilson will prevent real people from applying for the false jobs by giving them titles that say “[t]his is not a real job, do not apply, ” and will delete the fictitious accounts and jobs when they finish. Id. ¶ 120.

         Media Works and its journalists seek to investigate online companies, websites, and platforms, including by examining any discriminatory effects of their use of algorithms. Id. ¶ 130.

         Mislove and Wilson plan to publish their findings in academic papers, and to bring the results of their research to the public. Id. ¶ 123. Media Works intends to use the results of its journalistic investigations to inform the public about online business practices. Id. ¶ 132. Sandvig and Karahalios do not explicitly claim that they will publish their work, but state that their findings “would produce important new scientific knowledge about the operation of computer systems, discrimination, and cumulative disadvantage.” Id. ¶ 94.

         Plaintiffs are all aware that their activities will violate certain website ToS. Id. ¶¶ 95, 124, 131. All intend to use scraping to record data, which is banned by many of the websites plaintiffs seek to study. Id.; see id. ¶¶ 70-71. Many of the housing websites that Sandvig and Karahalios will study prohibit the use of bots. Id. ¶¶ 71, 95. All of the hiring websites that Mislove and Wilson will study prohibit the use of sock puppets, and most prohibit crawling. Id. ¶¶ 71, 124. Additionally, some websites control when and how visitors may speak about any information gained through the site-even in other forums-by including non-disparagement clauses in their ToS. Id. ¶ 72. Some sites also have ToS that require advance permission before using the sites for research purposes, which, plaintiffs allege, creates the possibility of viewpoint-discriminatory permission schemes. Id. ¶ 73. Aside from their ToS violations, plaintiffs' experiments will have at most a minimal impact on the operations of the target websites. Id. ¶¶ 96, 125. All plaintiffs but Media Works have already begun some of the activities involved in their research plans, including activities that require violating websites' TOS. Id. ¶¶ 98, 126.

         Plaintiffs claim that they must either refrain from conducting research, testing, and investigations that (they argue) constitute protected speech or expressive activity, or else expose themselves to the risk of prosecution under the Access Provision of the CFAA. Id. ¶ 137. Plaintiffs therefore filed this suit against the Attorney General, raising four causes of action: (1) a facial overbreadth and as-applied challenge under the Free Speech and Free Press Clauses of the First Amendment, id. ¶¶ 180-86; (2) a First Amendment Petition Clause challenge, ¶¶ 187-93; (3) a vagueness claim under the Fifth Amendment's Due Process Clause, id. ¶¶ 194-98; and (4) a claim of unconstitutional delegation to private parties under the Fifth Amendment, id. ¶¶ 199-202. The government has moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of standing and failure to state a claim. See Mot. to Dismiss [ECF No. 10].

         II. DISCUSSION

         We begin with the familiar standards that govern Rule 12(b) analysis. When facing a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, a plaintiff “bears the burden of showing that he has standing.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Just because a plaintiff makes it through the courthouse doors on one claim does not mean that other claims can tag along; rather, a plaintiff “must demonstrate standing for each claim he seeks to press and for each form of relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S.Ct. 1645, 1650 (2017) (citation omitted). On a motion to dismiss, plaintiffs must plead facts that, taken as true, raise a plausible standing claim. See Humane Soc'y of the U.S. v. Vilsack, 797 F.3d 4, 8 (D.C. Cir. 2015). The Court must take all facts alleged in the complaint as true and make all reasonable inferences in plaintiffs' favor. See Gulf Coast Mar. Supply, Inc. v. United States, 867 F.3d 123, 128 (D.C. Cir. 2017). However, the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Id.

         To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility does not mean certainty, or that a claim is more likely to succeed than not, but rather that the claim at issue rises “above the speculative level.” Twombly, 550 U.S. at 555. In other words: if what plaintiffs lay out in the complaint actually happened, is it more than merely possible that the law has been violated? Plaintiffs cannot meet this standard through “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. Likewise, a court need not accept a plaintiff's legal conclusions, even if they are dressed up as factual allegations. See Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 345 (D.C. Cir. 2018). However, courts must accept as true all facts stated in the complaint, making all reasonable inferences in plaintiffs' favor. Id.

         A. The Internet as Public Forum

         At the outset, it is necessary to answer a question that affects both the standing and the merits inquiries in this case: what is the First Amendment status of the Internet? And, more particularly, what powers does the government possess to regulate activity on individual websites?

         The government bases much of its argument that plaintiffs do not have standing, and that they have not alleged a First Amendment violation, on the premise that this case is about “a private actor's abridgment of free expression in a private forum.” Reply in Supp. of Def.'s Mot. to Dismiss (“Def.'s Reply”) [ECF No. 15] at 2; see Mem. of P. & A. in Supp. of Def.'s Mot. to Dismiss (“Def.'s Mem.”) [ECF No. 10-1] at 10-13, 22-24. This argument finds some support in Supreme Court case law, which has rejected the First Amendment claims of individuals who wished to distribute handbills or advertise a strike in shopping centers against the wishes of the property owners. See Hudgens v. NLRB, 424 U.S. 507, 520 (1976); Lloyd Corp. v. Tanner, 407 U.S. 551, 567-68 (1972). Private property, the Court determined, does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd, 407 U.S. at 569. Why, then, would it violate the First Amendment to arrest those who engage in expressive activity on a privately owned website against the owner's wishes?

         The answer is that, quite simply, the Internet is different. The Internet is a “dynamic, multifaceted category of communication” that “includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue.” Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870 (1997). Indeed, “the content on the Internet is as diverse as human thought.” Id. (citation omitted). Only last Term, the Supreme Court emphatically declared the Internet a primary location for First Amendment activity: “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace . . . .” Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017) (citation omitted).

         With this special status comes special First Amendment protection. The Packingham Court applied public forum analysis to a North Carolina law that banned former sex offenders from using social media websites, employing intermediate scrutiny because the law was content-neutral. See id. at 1736. The fact that the statute restricted access to particular websites, run by private companies, did not change the calculus. Consider: on one of the sites the Court treated as an exemplar of social media, LinkedIn, “users can look for work, advertise for employees, or review tips on entrepreneurship, ” id. at 1735-the same activities in which Mislove and Wilson wish to engage for their research. As the Court warned, the judiciary “must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in [the modern Internet].” Id. at 1736. The government's proposed public/private ownership distinction cannot account for the Court's determination in Packingham that privately-owned sites like Facebook, LinkedIn, and Twitter are part of a public forum, government regulation of which is subject to heightened First Amendment scrutiny. The Internet “is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.” Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830 (1995).

         An analogy to the real world, while necessarily imperfect, may help illustrate the point. Stroll out onto the National Mall on any day with decent weather and you will discover a phalanx of food trucks lining the streets. Those food trucks are privately owned businesses. Customers interact with them for the private purpose of buying a meal. If they were a brick-and-mortar store on private property, they would encounter no First Amendment barrier to removing a patron who created a ruckus. Yet if a customer standing on a public sidewalk tastes her food and then yells at those in line behind her that they should avail themselves of the myriad other culinary options nearby, the truck could not call the police to arrest her for her comments. She is in a public forum, and her speech remains protected even when she interacts with a private business located within that forum.

         It makes good sense to treat the Internet in this manner. “Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975). Regulation of the Internet presents serious line-drawing problems that the public/private distinction in physical space does not. The decisions in Lloyd and Hudgens concerned “property privately owned and used nondiscriminatorily for private purposes only.” Lloyd, 407 U.S. at 568. It is difficult to argue that most websites readily meet this description. As the Supreme Court has recognized, the Internet “provides relatively unlimited, low-cost capacity for communication of all kinds.” Reno, 521 U.S. at 870. Much of this communication takes place on websites that, in the physical world, would be seen solely as private, commercial spaces. Take Amazon.com. As a “popular retail website, ” Amazon undoubtedly has a private use “as a seller of products.” Packingham, 137 S.Ct. at 1741 (Alito, J., concurring in the judgment). Yet the site also “facilitates the social introduction of people for the purpose of information exchanges, ” since it “allows a user to create a personal profile” and, “[w]hen someone purchases a product on Amazon, the purchaser can review the product and upload photographs, and other buyers can then respond to the review.” Id. Conversely, Facebook-to which the Court pointed in Packingham as a quintessential site for protected First Amendment activity-allows users to buy and sell products in its Marketplace, and, like many social media sites, sells ads to make revenue.[2] Simply put: the public Internet is too heavily suffused with First Amendment activity, and what might otherwise be deemed private spaces are too blurred with expressive spaces, to sustain a direct parallel to the physical world.

         At the same time, however, it would be ill-advised to “equate the entirety of the [I]nternet with public streets and parks.” Id. at 1738 (emphasis added). To do so would “gloss[] over the dual public and private nature of digital arenas, ” and subject to heightened scrutiny regulations on even the Internet's most secluded nooks and crannies. Note, First Amendment-Freedom of Speech-Public Forum Doctrine-Packingham v. North Carolina, 131 Harv. L. Rev. 233, 238 (2017). Rifling through a business's confidential files is no less a trespass merely because those files are located in the cloud. A hacker cannot legally break into a Gmail account and copy the account- holder's emails, just as a busybody cannot legally reach into someone else's mailbox and open her mail. The First Amendment does not give someone the right to breach a paywall on a news website any more than it gives someone the right to steal a newspaper.

         What separates these examples from the social media sites in Packingham is that the owners of the information at issue have taken real steps to limit who can access it. But simply placing contractual conditions on accounts that anyone can create, as social media and many other sites do, does not remove a website from the First Amendment protections of the public Internet. If it did, then Packingham-which examined a law that limited access to websites that require user accounts for full functionality-would have come out the other way. 137 S.Ct. at 1737; see also Orin S. Kerr, Cybercrime's Scope: Interpreting “Access” and “Authorization” in Computer Misuse Statutes, 78 N.Y.U. L. Rev. 1596, 1658 (2003) (“Applying a contract-based theory of authorization in a criminal context . . . may be constitutionally overbroad, criminalizing a great deal beyond core criminal conduct, including acts protected by the First Amendment.”). Rather, only code-based restrictions, which “carve[] out a virtual private space within the website or service that requires proper authentication to gain access, ” remove those protected portions of a site from the public forum. Orin S. Kerr, Essay, Norms of Computer Trespass, 116 Colum. L. Rev. 1143, 1171 (2016). Stealing another's credentials, or breaching a site's security to evade a code-based restriction, therefore remains unprotected by the First Amendment.

         To return to the National Mall example, suppose that a food truck remains stationed on the Mall but boards up for the night, and the owner returns home. By shutting the food in a truck, perhaps along with her cooking instructions, the owner has placed a barrier between that property and the public forum outside. Thus, while the police could not arrest a customer for telling others in line that the food tastes terrible, or for reading the menu on the truck's exterior, they could arrest that customer for breaking into the boarded-up truck seeking confidential culinary information. This is true even if the customer claimed she was doing so in order to broadcast to the world the truck's substandard ingredients and ill-conceived recipes. While the First Amendment has free rein on the Mall generally, it does not protect those who circumvent barriers that demarcate private areas, even if those private areas are surrounded by an otherwise public forum. This distinction guides the Court's analysis here.

         B. Standing

         Before reaching the merits of plaintiffs' claims, the Court must assure itself that they have standing-a sufficient stake to transform this dispute into one of the “Cases” or “Controversies” on which federal courts may pass judgment. U.S. Const. art. III, § 2. “The ‘irreducible constitutional minimum of standing contains three elements': (1) injury-in-fact, (2) causation, and (3) redressability.” Rainbow/PUSH Coal. v. FCC, 330 F.3d 539, 542 (D.C. Cir. 2003) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Plaintiffs must plead or prove each element of standing “with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Here, therefore, “general factual allegations of injury resulting from the defendant's conduct may suffice” to allege standing, “for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.'” Id. (alteration in original) (citation omitted). For any given claim or form of relief, “the presence of one party with standing is sufficient” to reach the issue. Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006).

         Because this is a pre-enforcement challenge, plaintiffs must meet more specific conditions to satisfy the injury-in-fact requirement. They must plausibly allege “an intention to engage in a course of conduct [1] arguably affected with a constitutional interest, but [2] proscribed by a statute, and [3] [that] there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2342 (2014) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)). The government argues that plaintiffs cannot meet this test. See Def.'s Mem. at 8-19. Plaintiffs contend that they do intend to engage in constitutionally protected speech, and that they have pled a credible threat of prosecution. See Pls.' Mem. of P. & A. in Opp'n to Def.'s Mot. to Dismiss (“Pls.' Mem.”) [ECF No. 13] at 18-30. It is clear that any injury to plaintiffs is caused by the government's criminalization of websites' ToS, and that the declaratory and injunctive relief plaintiffs seek, see Compl. at 46-47, would redress the injury. Therefore, the question is whether plaintiffs allege a sufficient injury in the first place.

         Generally speaking, a court's standing analysis must be “especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819- 20 (1997). However, the D.C. Circuit has interpreted the Supreme Court's pre-enforcement standing doctrine broadly in the First Amendment sphere. Indeed, “the courts have shown special solicitude to pre-enforcement challenges brought under the First Amendment.” N.Y. Republican State Comm. v. SEC, 799 F.3d 1126, 1135 (D.C. Cir. 2015). Therefore, the Circuit has found, “the courts' willingness to permit pre-enforcement review is ‘at its peak' when claims are rooted in the First Amendment.” Id. at 1135 (citation omitted). “Pre-enforcement review, particularly in the First Amendment context, does not require plaintiffs to allege that they ‘will in fact' violate the regulation in order to demonstrate an injury.” U.S. Telecom Ass'n v. FCC, 825 F.3d 674, 739 (D.C. Cir. 2016) (quoting Driehaus, 134 S.Ct. at 2345), reh'g en banc denied, 855 F.3d 381 (D.C. Cir.), cert. docketed, No. 17-504 (U.S. Oct. 3, 2017). Nor need they show that they are likely to be prosecuted. Rather, “[s]tanding ‘to challenge laws burdening expressive rights requires only a credible statement by the plaintiff of intent to commit violative acts and a conventional background expectation that the government will enforce the law.'” Id. (quoting Act Now to Stop War & End Racism Coal. v. District of Columbia (ANSWER I), 589 F.3d 433, 435 (D.C. Cir. 2009)).

         1. “Arguably Affected With a Constitutional Interest”

         Plaintiffs assert that their conduct falls within three categories of First Amendment-protected activity. Scraping data from their target websites, they allege, is subject to the First Amendment right to record or preserve information. Pls.' Mem. at 10-14. Moreover, employing bots and sock puppets and creating false user accounts constitute harmless false speech. Id. at 14- 17. And their planned post-research activities are protected by the right to publish. Id. at 17-18. All of these claims are sufficiently plausible to conclude that plaintiffs' proposed conduct is “arguably affected with a constitutional interest.” Driehaus, 134 S.Ct. at 2342.

         First, scraping plausibly falls within the ambit of the First Amendment. “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). The Supreme Court has made a number of recent statements that give full First Amendment application to the gathering and creation of information.[3] Additionally, six courts of appeals have found that individuals have a First Amendment right to record at least some matters of public interest, in order to preserve and disseminate ideas.[4] That plaintiffs wish to scrape data from websites rather than manually record information does not change the analysis. Scraping is merely a technological advance that makes information collection easier; it is not meaningfully different from using a tape recorder instead of taking written notes, or using the panorama function on a smartphone instead of taking a series ...


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