A Sneak and Peak Look at the JUSTICE Act

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3 Provisions of the PATRIOT Act (“Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) are set to expire at the end of the year.


WASHINGTON — As Congress prepares to consider extending crucial provisions of the USA Patriot Act, civil liberties groups and some Democratic lawmakers are gearing up to press for sweeping changes to surveillance laws.

Both the House and the Senate are set to hold their first committee hearings this week on whether to reauthorize three sections of the Patriot Act that expire at the end of this year. The provisions expanded the power of the F.B.I. to seize records and to eavesdrop on phone calls in the course of a counterterrorism investigation.

Is this really an “expansion” of power? Or a matter of updating existing powers in order for the F.B.I. to effectively do its job of protecting American lives in wake of 21st century technological advancements?

Laying down a marker ahead of those hearings, a group of senators who support greater privacy protections filed a bill on Thursday that would impose new safeguards on the Patriot Act while tightening restrictions on other surveillance policies. The measure is co-sponsored by nine Democrats and an independent.

The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE- ain’t that cute?) Act is being introduced by U.S. Senators Russ Feingold (D-WI), Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Ron Wyden (D-OR), Daniel Akaka (D-HI) and Bernie Sanders (I-VT- who might as well carry a “D” by his name).

“Every single member of Congress wants to give our law enforcement and intelligence officials the tools they need to keep Americans safe,” Mr. Feingold said in a statement when filing the bill. “But with the Patriot Act up for reauthorization, we should take this opportunity to fix the flaws in our surveillance laws once and for all.”

Really?! Feingold (and every single member of Congress) wants to give our FBI and CIA the tools they need to keep Americans safe? Is that what he wanted in Oct. 2001 when he alone opposed the Patriot Act? If he had a chance to vote against the entire Patriot Act today, would he do so? 8 years following the events of 9/11, and we have not experienced another such terror attack. How has the Patriot Act not contributed to that success?

One of the witnesses Democrats have invited to testify at both hearings is Suzanne E. Spaulding, who has worked for lawmakers of both parties as a former top staffer on the House and Senate Intelligence committees.

I love when it’s always pointed out that she’s “worked for lawmakers of both parties”, as if that gives her credentials of being down the middle/bipartisan. But on this issue, she has always aligned herself against the Bush Administration on the Patriot Act, FISA, NSA surveillance program.

Mrs. Spaulding said she would urge Congress to tighten restrictions on when the F.B.I. could use the Patriot Act powers.

The rapid build-up of domestic intelligence authorities after the Sept. 11 attacks, she said, had overlooked “important safeguards,” which has resulted “in a greater likelihood at a minimum of the government mistakenly intruding into the privacy of innocent Americans, and at worst having a greater capability of abusing these authorities.”

Still, she acknowledged, the public record contains scant evidence that the F.B.I. has abused its powers under the three expiring Patriot Act sections.

Yet Spaulding and others of her mindset continue to fear-monger a characterization of “abuses”, “spying on AMERICANS (not terrorists)”, “civil rights intrusion”. That’s how they define this.

Republicans invited Kenneth L. Wainstein, a former assistant attorney general for national security for the Bush administration, to testify at both Patriot Act hearings.

“We have to be careful not to limit these tools to the point that they are no longer useful in fast-moving threat investigations,” Mr. Wainstein said. “There is an important place for oversight of national security tools, and that oversight is being exercised by Congress and by the federal judges on the Foreign Intelligence Surveillance Court.”

The first such provision allows investigators to get “roving wiretap” court orders authorizing them to follow a target who switches phone numbers or phone companies, rather than having to apply for a new warrant each time.

From 2004 to 2009, the Federal Bureau of Investigation applied for such an order about 140 times, Robert S. Mueller, the F.B.I. director, said at a Senate Judiciary Committee hearing last week.

The second such provision allows the F.B.I. to get a court order to seize “any tangible things” deemed relevant to a terrorism investigation — like a business’s customer records, a diary or a computer.

From 2004 to 2009, the bureau used that authority more than 250 times, Mr. Mueller said.

The final provision set to expire is called the “lone wolf” provision. It allows the F.B.I. to get a court order to wiretap a terrorism suspect who is not connected to any foreign terrorist group or foreign government.

Mr. Mueller said this authority had never been used, but the bureau still wanted Congress to extend it.

I wonder if Dennis Kucinich sees that last fact as a reason for scrapping it. 5 years after the enactment of the Patriot Act, the number of searches conducted at libraries under the business records provision was just one, prompting Kucinich to say: “If they haven’t used it, they shouldn’t have any problems with our efforts to get it repealed.”

As Ron Kessler points out, “That was like saying that because a policeman had never used his gun, it should be taken away.” [pg 65, The Terrorist Watch]

Kucinich, btw, was on a FOX morning news show this weekend, crying foul over the timing of arrests made last week to foil a terror plot in NYC, in close proximity of the upcoming debate on the Patriot Act. That accusation is a bit akin to Nancy Pelosi’s smear of the CIA. However, who would engage in political timing and advocacy? Why, the national security-averse NYTimes in 2005:

Before yesterday’s vote, opponents of the legislation rallied around a front page article in Thursday’s New York Times that reported Mr. Bush had secretly lifted certain limits on spying inside the United States. After more than a year holding the story, the paper decided to run it on the day of the Patriot Act vote.

The rhetoric of the Senators who are introducing the JUSTICE Act is one of striking balance between giving law enforcement and intell officials the tools they need on the one hand; while protecting American civil liberties on the other. But are Americans really in danger of being targeted for civil rights abuses and violations under the current Patriot Act?

Many of the proposals under discussion involve small wording shifts whose impact can be difficult to understand, in part because the statutes are extremely technical and some govern technology that is classified.

But in general, civil libertarians and some Democrats have called for changes that would require stronger evidence of meaningful links between a terrorism suspect and the person whom investigators are targeting.

In the same way, some are proposing to use any Patriot Act extension bill to tighten when the F.B.I. may use “national security letters” — administrative subpoenas that allow counterterrorism agents to seize business records without obtaining permission from a judge. Agents use the device tens of thousands of times each year.

The Patriot Act section that expanded the F.B.I.’s power to issue those letters is not expiring, but they have become particularly controversial because the Justice Department’s inspector general issued two reports finding that F.B.I. agents frequently misused the device to obtain bank, credit card and telephone records.

National security letters are similar to grand jury subpoenas, issued in international terrorism and espionage investigations.

Ronald Kessler, The Terrorist Watch, has some things to say regarding this matter, Pg 73-5:

As it turns out, the actual number of national security letters issued by the FBI each year averages around 50,000. While that number may sound like a lot, an investigation of one suspected terrorist may entail issuance of hundreds of national security letters to track down data from each bank account, credit card, cell phone, telephone, e-mail, and Internet account he may have used over time.


In a later audit, Justice Department Inspector General Glenn A. Fine found minor deficiencies associated with 22 of the 293 national security letters he examined from 2003 to 2005. In some cases, the letters were issued after the authorized investigation period, or an agent had accidentally transposed the digits in a telephone number of a person under investigation.

In about half the cases, the problems were not the fault of the FBI: According to Fine’s report, recipients of the letters sometimes turned over more information than requested or provided information about the wrong phone number. These problems never should have been lumped in with FBI violations.

Mueller brought that up with Fine, who insisted he was right to do so.

Mueller says the reason the FBI did not keep proper track of requests for national security letters is that no separate system had been set up to keep track of them.


By the time the report came out, Mueller had already taken twelve steps to correct the problems,


Fine specifically found that the FBI had not intentionally violated any rules. He determined that, with the exception of situations where the recipient made an error, the FBI in most cases had obtained information to which it was, in fact, entitled. He noted the tremendous workload of FBI agents trying to stop the next attack. And he concluded that NSLs have contributed significantly to the FBI’s counterterrorism efforts.

The news accounts either ignored or downplayed these findings. Instead, they played up the story as a massive intrusion into people’s personal lives, suggesting NSLs had something to do with monitoring calls rather than simply obtaining subscriber information associated with telephone numbers and e-mail addresses or obtaining financial records.

The F.B.I and the C.I.A. are not interested in “spying” upon ordinary Americans. They are interested in being able to do their jobs and to do them well, which involves protecting their loved ones and ordinary Americans.

Whose rights were being violated more, those whose phones were tapped by court order or those who died in the 9/11 attacks?

– Ron Kessler, The Terrorist Watch, pg 64

JUSTICE Act 2009 fact sheet:

The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect the constitutional rights of Americans while ensuring the government has the powers it needs to fight terrorism and collect intelligence.

Title I – Reasonable Safeguards to Protect the Privacy of Americans’ Records

Sections 101-106 – National Security Letters

The bill rewrites the National Security Letter (NSL) statutes to ensure the FBI can obtain basic information without a court order, but also adds reasonable safeguards to ensure NSLs are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of NSLs and associated gag orders.

Section 107 – Section 215 Orders

The bill would reauthorize the use of Section 215 business records orders under FISA, but with additional checks and balances to ensure these orders are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of Section 215 orders and associated gag orders.

Title II – Reasonable Safeguards to Protect the Privacy of Americans’ Homes

Section 201 – “Sneak & Peek” Searches

The bill would retain the Patriot Act’s authorization of “sneak and peek” criminal searches but eliminate the overbroad catch-all provision that allows these secret searches in virtually any criminal case. It would shorten the presumptive time limits for notification, and create a statutory exclusionary rule.

Title III – Reasonable Safeguards to Protect the Privacy of Americans’ Communications

Section 301 – FISA Roving Wiretaps

The bill would reauthorize roving FISA wiretaps, but eliminate the possibility of “John Doe” roving wiretaps that identify neither the person nor the phone to be wiretapped. It would require agents to ascertain the presence of the target of a roving wiretap before beginning surveillance.

Section 302 – Pen Registers and Trap and Trace Devices

The bill would retain the Patriot Act’s expansion of the FISA and criminal pen/trap authorities to cover electronic communications, but would allow pen/traps to be used only to obtain information about people who have some connection to terrorism or espionage. It would impose additional procedural safeguards to serve as a check on these authorities.

Section 303 – Telecommunications Immunity

The bill would repeal the retroactive immunity provision in the FISA Amendments Act.

Section 304 – Bulk Collection

The bill retains the new warrantless authorities in the FISA Amendments Act but would prevent the government from using that law to conduct “bulk collection” of the contents of communications, including all communications between the United States and the rest of the world.

Section 305 – Reverse Targeting

The bill would ensure that the overseas warrantless collection authorities of the FISA Amendments Act are not used as a pretext to target Americans in the U.S.

Section 306 – Use of Unlawfully Obtained Information

The bill would limit the government’s use of information about Americans obtained under FISA Amendments Act procedures that the FISA Court later determines to be unlawful, while giving the court flexibility to allow such information to be used in appropriate cases.

Section 307 – Protections for International Communications of Americans

The bill would amend the FISA Amendments Act to create safeguards for communications not related to terrorism that the government knows have one end in the United States.

Section 308 – Computer Trespass

The bill would guard against abuse of a warrantless surveillance authority in the Patriot Act that allows computer owners who are subject to denial of service attacks or other episodes of hacking to give the government permission to monitor trespassers on their systems.

Title IV – Improvements to Further Congressional and Judicial Oversight

Section 401 – FISA Public Reporting

The bill would require limited additional public reporting on the use of FISA.

Section 402 – Use of FISA Evidence

The bill would apply the Classified Information Procedures Act to the use of FISA evidence in criminal cases, and allow the use of protective orders and other security measures in civil cases, to ensure that courts have discretion to allow litigants access to information where appropriate while still protecting sensitive information.

Section 403 – Nationwide Court Orders

The bill would permit a recipient of a nationwide court order to challenge it either in the district where it was issued or in the district where the recipient is located.

Title V – Improvements to Further Effective, Focused Investigations

Section 501 – Domestic Terrorism

The Patriot Act’s overbroad definition of domestic terrorism could cover acts of civil disobedience by political organizations. The bill would limit the qualifying offenses for domestic terrorism to those that constitute a federal crime of terrorism.

Section 502 – Material Support

The bill would amend the overly broad criminal definition of material support for terrorism by specifying that a person must know or intend the support provided will be used for terrorist activity.

14 Responses to “A Sneak and Peak Look at the JUSTICE Act”

  1. 1


    I am sure we can count on all the leftists, including the New York Times, to oppose these extensions and further encroachment on liberty … Don’t you think? I mean look how they opposed it when Bush did it.

  2. 2

    Ben Masel

    Recalling all the outrage over the (imo) overbroad Homeland Security report calling for increased surveillance on ‘rightwing extremism’ a few months back, I’d imagine there’d be a recognition that this bill is the best shield you guys will get. You don’t welcome Feingold’s efforts at oversight of Holder and Napolitano?

    Pass the JUSTICE Act Facebook group

  3. 4

    Old Trooper

    Dick Durbin and Bernie Sanders as co-sponsors?
    There is more to this than meets the eye. Since when do these bozos care about National Security?

  4. 5

    Old Trooper

    With Dick & Bernie pushing it the picture gets more clear. It must be applicable only to “Domestic” “Terrorists”. Veterans, Tea Party attendees, opposition Parties, Property Rights advocates, NRA Members, Conservative Talk Show Radio Personalities and the folks that will be part of the coming Tax Revolts.

  5. 7


    Ben Masel said; “Recalling all the outrage over the (imo) overbroad Homeland Security report calling for increased surveillance on ‘rightwing extremism’ a few months back, I’d imagine there’d be a recognition that this bill is the best shield you guys will get. You don’t welcome Feingold’s efforts at oversight of Holder and Napolitano?”

    Of course, that is if the bill would apply to us (i.e. right wingers). As if the Democratic party does not set up double standards for their benefit. An act they frequently hold others responsible for, except themselves despite being quiet good at it.

    Anyway, this is an interesting article Wordsmith. However, I am not sold on the PATRIOT Act and the reason being is that I do not see how it has effectively improved our abilities to track terrorism.

  6. 8

    Ben Masel

    Ryan: With no new bill, all of the existing Patriot Act powers can be deployed. I won’t claim that Feingold’s propsals will absolutely protect against abuse, should the Justice Dept and/or Homeland Security bow to political pressure (from either the Obama Administration or a hypothetical future Republican President,) but they do raise the legal threshold, as well as oversight from the Congress.

    I’d prefer an even greater rollback of the surveillance powers, say to those in place during Gerald Ford’s Presidency. Senator Feingold, whio I believe shares that preference, submitted what he considers the best bill that can pass.

    My take, Obama won’t directly oppose the bill, but will try to get its specifics watered down. There’s strong parts of each Party who welcome broad governmental powers, but also elements in each who value the rights to Privacy, speech, association, and assembly. We’re only going to preserve these rights with a cross-party alliance.

  7. 9

    Old Trooper

    Ben, Eric Holder, the US AG is not known for his sense of fairness or justice. He was part of the Janet Reno DOJ that brought Us Ruby Ridge, Waco and the Elian Gonzales incidents. His re-opening for Prosecution of the CIA cases is fully representative of his mindset and intent.

    This Bill appears to leave the door open for surveillance of US Citizens at the discretion of a Judge and Holders choice of targets. I did not like the original flavor of the Patriot Bill and history and not “conclusion jumping” leads me to that conclusion. Why has ACORN not been subject to investigation by the FBI on RICO Statutes or the New Black Panthers for Voter Intimidation?

    There is some past and recent history offered here for your consideration. I have been off “Jump Status” since March of 05 since I retired but I am neither deaf, blind or senile. Do I trust the Obama Regime to keep Me safer here? NOPE! Do I trust the Obama Dept of Homeland Security to keep watch on Terrorists Cells from Middle Eastern origin or overstayed VISAs? NOPE!

    Enforcement of Existing Laws is what is honestly needed, not new ones that will be as selectively enforced as the old ones were. In my opinion most Domestic Terrorists are in Congress or part of Team Obama right now.

    I am not an ignorant redneck from Montana. I am a graduate of UNC Chapel Hill, the University of Maryland and the War College and although I am not an Attorney, I can read, write, do better than supermarket math and have been involved in US Foreign Policy, understand how things work in third world countries and am seeing My Country become one from incompetent leadership, bad laws and exercised sufficient good judgment enough to retire as an O-6.

    The Bill looks like something that needed more prudent thought and if I were in Congress I could not vote to approve it. Not that I would ever wish to soil myself with politics.

  8. 10

    Ben Masel

    “to leave the door open for surveillance of US Citizens at the discretion of a Judge and Holders choice of targets. ”

    The other choice, don’t pass the bill, and the judge is largely cut out of the loop. Keep in mind that at present, and for the next few years, the majority of Federal Judges will be appointees of Republican Presidents. (If i were writing the legislation my self, the PATRIOT Act provisions that facilitated judge-shopping by the Feds would be further cut back.)

  9. 11



    Patriot Act Helped Foil NY Terror Plot
    September 30, 2009

    President Obama called New York Police Commissioner Ray Kelly to thank him for his efforts in thwarting a planned terrorist attack on the city’s subway system, which counterterrorism experts describe as the most serious terror plot since 9/11. But Obama should have also thanked his predecessor in the White House.

    The arrest and indictment of Najibullah Zazi on charges of conspiracy to use weapons of mass destruction was made possible by the “roving wiretaps” allowed by the Patriot Act, which was signed into law in 2001 by President George W. Bush. “All the layers of defense President Bush set up after Sept. 11 are working,” Rep. Peter King, R-N.Y., pointed out. The Patriot Act caused plenty of controversy, but it was key to the Bush administration’s successful eight-year counterterrorism strategy that focused on disrupting terror attacks and thereby preventing the deaths of more Americans here at home.

    Even the FBI’s investigation into the 24-year-old airport shuttle driver began on Bush’s watch. Agents tracked the Afghan native (and legal resident of the United States) when he traveled to the tribal areas of Pakistan last year, where he was allegedly taught how to make bombs by al Qaeda operatives. Nine pages of handwritten formulas for homemade explosives, fuses and detonators were later found on his laptop, e-mailed from an Internet account originating in Pakistan, court documents charge. This is exactly the kind of foreign communications the Patriot Act was designed to intercept.

    After purchasing “unusually large quantities of hydrogen peroxide and acetone products from beauty supply stores” in Denver this summer, Zazi on Sept. 6 allegedly asked an unnamed individual to give him “the correct mixtures of ingredients to make explosives” before leaving acetone residue in a Colorado hotel room. Tailed by the FBI, he rented a car and drove to New York, where his fingerprints were reportedly found on batteries and a scale in a Queens home that law enforcement officials raided on Sept. 14.

    Also indicted in the subway bombing plot was Queens imam Ahmad Wais Afzali — who warned Zazi in a call intercepted by the FBI around Sept. 11 that he was under investigation, thus forcing officials to speed up the arrest. Again, this wiretap is exactly the kind of domestic communication the Patriot Act was designed to intercept in the effort to prevent new bloodshed.

    Many questions remain, including the size of Zazi’s terror network and whether he has any association with the Taliban. But we already know what could have happened if the FBI lacked the tools it needed to interrupt the plot. Or what could happen in the future if key provisions of the Patriot Act, set to expire on Dec. 31, are not renewed by the president and Congress.

  10. 12



    Intelligence Averts Another Attack
    Why do Democrats in Congress want to change key laws that have helped to discover terrorist plots?
    * OCTOBER 1, 2009, 10:44 P.M. ET


    One would think that the arrests last week of Najibullah Zazi, charged with plotting to bomb New York City subways—and of two others charged with planning to blow up buildings in Dallas, Texas, and Springfield, Ill.—would generate support for the intelligence-gathering tools that protect this country from Muslim fanatics. In Mr. Zazi’s case, the government has already confirmed the value of these tools: It has filed a notice of its intent to use information gathered under the Foreign Intelligence Surveillance Act, which was specifically written to help combat terrorists and spies.

    Nevertheless, there is a rear-guard action in Congress to make it more difficult to gather, use and protect intelligence—the only weapon that can prevent an attack rather than simply punish one after the fact. The USA Patriot Act, enacted in the aftermath of 9/11, is a case in point.

    This law has a series of provisions that will expire unless Congress renews them. Up for renewal this year is a provision that permits investigators to maintain surveillance of sophisticated terrorists who change cell phones frequently to evade detection. This kind of surveillance is known as “roving wiretaps.” Also up for renewal are authorizations to seek court orders to examine business records in national security investigations, and to conduct national security investigations even when investigators cannot prove a particular target is connected to a particular terrorist organization or foreign power—known as “lone wolf” authority.

    Roving wiretaps have been used for decades by law enforcement in routine narcotics cases. They reportedly were used to help thwart a plot earlier this year to blow up synagogues in Riverdale, N.Y. Business records, including bank and telephone records, can provide important leads early in a national security investigation, and they have been used to obtain evidence in numerous cases.

    The value of lone wolf authority is best demonstrated by its absence in the summer of 2001. That’s when FBI agents might have obtained a warrant to search the computer of Zacharias Moussaoui, often referred to as the “20th hijacker,” before the 9/11 attacks—although there was no proof at the time of his arrest on an immigration violation that he was acting for a terrorist organization. But a later search of his computer revealed just that.

    Rather than simply renew these vital provisions, which expire at the end of this year, some congressional Democrats want to impose requirements that would diminish their effectiveness, or add burdens to existing authorizations that would retard rather than advance our ability to gather intelligence.

    One bill would require the government to prove that the business records it seeks by court order pertain to an agent of a foreign power before investigators have seen those records. The current standard requires only that the records in question do not involve a person in the United States, or that they do relate to an investigation undertaken to protect the country against international terrorism or spying.

    The section of the Patriot Act that confers the authority on investigators to seek these records was amended in 2006 to add civil liberties protections when sensitive personal information about a person in the U.S. is gathered. It passed the Senate overwhelmingly with support that included then-Sens. Barack Obama and Joe Biden.

    The same proposed legislation would make it harder to obtain a real-time record of incoming and outgoing calls—known as a pen register—in national security cases. It does so by requiring that the government prove that the information sought in this record relates to a foreign power. Currently, the government can obtain a court order by certifying that the information sought either is foreign-intelligence information or relates to an investigation to protect against foreign terrorism or spying.

    While the changes may sound benign, they turn the concept of an investigation on its head, requiring the government to submit proof at the outset of an investigation while facts are still being sought. In any event, a pen register shows only who called whom and nothing about the content of the call, and thus raises none of the privacy concerns that are at stake when a full-fledged wiretap is at issue. Moreover, the underlying information in a pen register is not private because telephone companies routinely have it.

    Other proposals target national security letters, known as NSLs, which are administrative subpoenas like those issued routinely by the FBI and agencies as diverse as the Agriculture Department and the IRS to get information they need in order to enforce the statutes they administer. One Democratic bill would impose a four-year sunset on the FBI’s authority to issue such letters where none exists now. Another, the “Judicious Use of Surveillance Tools In Counterterrorism Efforts Act of 2009,” would bar their use entirely to get information about local or long-distance calls, financial transactions, or information from credit reports.

    But this is precisely the kind of information that would be useful to an investigator trying to find out who a terrorist is calling or how much money he is receiving from overseas. The FBI already has the authority to obtain this kind of information in cases involving crimes against children. The Drug Enforcement Administration has it in drug cases. There is no sense in giving investigators in national security cases less authority than investigators in criminal cases, and in criticizing them for failing to connect the dots while denying them the authority to discover the dots.

    Mr. Zazi’s arrest is only the most recent case in which intelligence apparently has averted disaster. Cells have been broken up and individual defendants convicted in New York, Virginia, North Carolina, Oregon, Texas and Ohio.

    But a disaster once averted is not permanently averted, as the writer Jonah Goldberg has noted. After the 1993 World Trade Center bombing killed six people and injured hundreds, Ramzi Youssef, the mastermind, was caught, convicted and put in the maximum security prison at Florence, Colo. Nonetheless, the World Trade Center towers are gone along with thousands of people.

    Those who indulge paranoid fantasies of government investigators snooping on the books they take out of the library, and who would roll back current authorities in the name of protecting civil liberties, should consider what legislation will be proposed and passed if the next Najibullah Zazi is not detected.

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