PapersPlease: USA Demands to Install Physical and Digital "REAL-ID" Nazi-esque Checkpoints Everywhere

grarpamp grarpamp at
Fri Jul 2 13:34:57 PDT 2021,_please,_Please

Papers, Please!
The Identity Project


Jun 17 2021
DHS still evades review of no-fly orders

Two recent court cases, and follow-up articles and interviews with the
plaintiffs and their lawyers, show how the highest priority for the
U.S. government with respect to no-fly orders continues to be
preventing judicial review of these government decisions, not
preventing terrorism.

When an airline requests permission to allow an individual to board a
flight, and the U.S. Department of Homeland Security (DHS) declines to
give permission, that “Boarding Pass Printing Result” (BPPR) message
is communicated only to the airline,  not the would-be traveler. Even
the airline is not told the basis, if any, for the negative BPPR
message. (The default is “No”, in the absence of affirmative,
individualized government permission-to-board.)

Again and again and again, when people have challenged these no-fly
orders in U.S. courts, the government has chosen not to disclose or
defend the basis for its decisions that these people constitute a
threat to aviation sufficient to justify restricting their right to

Instead, the government has told the plaintiffs that they have been
(although perhaps only temporarily) removed from “the no-fly list”
(although with no assurance that they won’t again be prevented from
traveling in the future), and then gotten their complaints dismissed
in court as “moot”. Only rarely has it been possible to pursue these

A special law restricting the jurisdiction of the Federal courts over
“orders” of the Transportation Security Administration (TSA), 49
U.S.C. § 46110, has also been used to avoid fact-finding as to the
basis, if any, for these orders. In our opinion this law is clearly
unconstitutional. But the Constitutionality of this law has not yet
been directly ruled on, and it has been the subject of little
Congressional scrutiny.

If the government really thought these people were dangerous, it
should have gone to court sooner to obtain injunctions or restraining
orders restricting their freedom of movement. If challenged, it should
have defended its actions before Federal judges in adversarial,
evidence-based fact-finding proceedings.

The government has chosen to do neither, and has consistently
responded to no-fly lawsuits by taking almost everyone with the means
and will to pursue extended litigation off the not-fly list. This
reflects the reality that the DHS sees judicial oversight of its
actions, not terrorism, as the greater threat to its standard
operating procedures. The top DHS priority is to be able to continue
its practice of extrajudicial secret decision-making — disconnected
from facts and based instead on fantasies of “pre-crime” predictive
ability — about who is, and who is not, allowed to exercise their
Constitutional rights.

The stories of Ahmad Chebli and Ashraf Maniar illustrate how this
plays out in real life —  and how it wrecks real people’s lives and

Read More →
Edward Hasbrouck Posted in Freedom To Travel, Secret Law	1 Comment
May 19 2021
A race to the bottom: DHS “Biometric Tech Rally”

Today the U.S. Department of Homeland Security (DHS) announced a
competition between hardware and software vendors to demonstrate the
facial-recognition systems that are most useful for surveillance and
other malign uses: cameras or other sensors and facial and/or other
biometric matching algorithms that can identity travelers (or other
people in public places) even if they are wearing masks:

    [T]he 2021 Biometric Technology Rally will focus on evaluating the
ability of systems to reliably collect and/or match images of
individuals, including those wearing face masks. The intent is to
improve the ability to recognize people without requiring travelers to
remove protective equipment….

    The 2021 Biometric Technology Rally will be held at the Maryland
Test Facility (MdTF) in Upper Marlboro, Maryland, later this fall.
Testing will be performed in controlled scenarios relevant to DHS

    Providers of face and multi-modal biometric acquisition systems,
as well as providers of biometric matching algorithms, are encouraged
to participate.

Requiring travelers to remove their masks at checkpoints operated by
or on behalf of the Transportation Security Administration (TSA)
and/or other DHS components endangers travelers and makes clear that
the U.S. government has put surveillance and tracking of travelers
ahead of safety and health.

But the way to completely eliminate the threat to travelers’ health
and safety posed by unmasking is to stop trying to identify travelers,
 which is based on the “pre-crime” fantasy that identity-based
algorithms can read travelers’ minds and predict which of them intend
to  commit future aviation-related crimes. Instead, the TSA should
confine its searches to those intended to detect genuinely threatening
objects: weapons and explosives.
Edward Hasbrouck Posted in Biometrics, Surveillance State	1 Comment
May 17 2021
ACLU: “Digital IDs Could Be a Nightmare”

As the U.S. Department of Homeland Security is soliciting proposals
from vendors for how to put digital versions of drivers licenses and
other ID credentials on smartphones, the ACLU has released a timely
and insightful white paper, Identity Crisis: What Digital Driver’s
Licenses Could Mean for Privacy, Equity, and Freedom, by Jay Stanley
of the ACLU Speech, Privacy, and Technology Project, along with an
executive summary in the form of a blog post, Digital IDs Might Sound
Like a Good Idea, But They Could Be a Privacy Nightmare.

The ACLU white paper links to some of our research and reporting and
highlights many of our concerns with compelled identification, the
REAL-ID Act, invisible virtual checkpoints, ID-based blacklists and
controls on what we are and aren’t allowed to do, and the role of
AAMVA and other “private” entities as outsourced, opaque,
unaccountable, creators of ID “standards” that function as de facto
laws and regulations that govern our movements and activities, but
that are adopted in secret, exempt from the Freedom Of Information Act
or other transparency laws, and lack basic privacy protections. or
respect for rights recognized by the U.S. Constitution and
international human rights treaties.

We encourage readers interested in these issues to read the ACLU white
paper in full. But here’s an excerpt form the introduction to the
white paper, framing the issue:

Read More →
Edward Hasbrouck Posted in Papers, Please, REAL ID, Secret Law,
Surveillance State	2 Comments
May 14 2021
More DHS “pre-crime” policing, but still no real “precogs”

The U.S. Department of Homeland Security has announced the formation
and rebranding of new and existing DHS components into what it is now
calling the DHS Center for Prevention Programs and Partnerships (“C3P”
in milspeak).

C3P is explicitly intended to be a “precrime” crime prevention agency,
and to teach and promote “precrime” techniques for predicting future
crimes and identifying future criminals to other Federal, state, and
local law enforcement agencies. According to the DHS press release
announcing the formation of C3P, “DHS’s efforts are grounded in an
approach to violence prevention that leverages behavioral threat
assessment and management tools, and addresses early-risk factors that
can lead to radicalization to violence.”

C3P’s attempts to predict future crimes are to be based on behavioral
patterns, i.e profiling, and on encouraging members of the public to
inform on their families, friends, and classmates. According to
Secretary of Homeland Security Alejandro Mayorkas, future criminals
“typically exhibit behaviors that are recognizable to many but are
best understood by those closest to them, such as friends, family, and

The problem, of course is that the law does not permit prosecution
based solely on patterns of lawful behavior. With good reason:
“precrime” prediction is a figment of the imagination of the creators
of a dystopian fantasy movie, Minority Report.

Neither the DHS nor anyone else actually has any “precogs” (human,
robotic, or cybernetic) like those in the movie who can predict future
crimes, or any profile or algorithm that actually enables it to
predict who will commit future crimes.

“Precrime” policing should be left in Hollywood where it belongs, not
allowed to infect the thinking of those who wield real-world police
Edward Hasbrouck Posted in Surveillance State	Leave a comment
Apr 27 2021
DHS extends REAL-ID airport enforcement “deadline” again

The Department of Homeland Security has once again postponed its
self-proclaimed “deadline” for enforcement of the REAL-ID Act at
airports, this time from October 1, 2021, to May 3, 2023.

The latest postponement proves, once again, that the dates of the DHS
threats to begin “enforcing” the REAL-ID Act at airports are as
changeable as the dates in any of the threats made by extortionists or
kidnappers. Today’s DHS press release is more like a ransom note than
a legal notice: “If you get an ID we deem acceptable, we might not
harass you as much when you fly, and we might allow you to exercise
your right to travel.”

It remains unclear what enforcement of the REAL-ID Act at airports
might mean. No law requires air travelers to have any ID, and the
REAL-ID Act doesn’t change that.  The Transportation Security
Administration recently posted a video showing how you can fly without
ID.  But today’s DHS press release implies that the DHS is
contemplating denying passage through TSA checkpoints at airports to
travelers who don’t have, don’t carry, or don’t chose to show ID
credentials that the DHS and TSA deem “compliant” or “acceptable”:

    Beginning May 3, 2023, every air traveler 18 years of age and
older will need a REAL ID-compliant driver’s license or identification
card, state-issued enhanced driver’s license, or another
TSA-acceptable form of identification at airport security checkpoints
for domestic air travel.

Since this is a press release, not a bill proposing new legislation or
a notice of proposed new regulations, it doesn’t need to say what
legal basis there might be for this claim. But so far as we call tell,
there is none.

The DHS recently tried to get Congress to exempt its implementaton of
the REAL-ID Act from standard Federal rules notice and approval. But
Congress turned down the DHS proposal for exemption of REAL-ID
implementation from the Administrative Procedure Act and the Paperwork
Reduction Act. The DHS has not yet begun any of the notice and
approval procedures which would be required before it could impose new
restrictions or requirements for air travel on the basis of the

We expect that today’s press release will be followed by a formal
rulemaking notice that merely changes the REAL-ID threat date. But
such a rulemaking will neither clarify what action is really being
threatened  (i.e what the TSA will really do when travelers continue
to show up at TSA checkpoints without “compliant” ID), clarify what
the purported legal basis would be for that action, nor, in itself,
create a legal basis for any such action.

Today’s DHS press release says that the change in the “deadline” will
give states and individuals more time to “comply” with the REAL-ID
Act. But compliance with the REAL-ID Act was, and still is, optional
for both states and individuals. What the postponement by the DHS of
its self-imposed “deadline” really does is give the DHS itself more
time to come up with a legal justification for its threatened actions
— or to withdraw its baseless threats. It also gives Congress more
time to repeal the REAL-ID Act.

Don’t be intimidated by DHS and TSA threats. Regardless of what
self-imposed DHS deadlines come and go, with how many more
postponements, you will still have the same right to travel without ID
that you have now.
Edward Hasbrouck Posted in REAL ID	4 Comments
Apr 21 2021
DHS wants to put REAL-ID drivers licenses on smartphones

The Department of Homeland Security has published a Request For
Information (RFI) from vendors and other stakeholders regarding
standards for drivers licenses and other IDs stored on smartphones or
other mobile devices to be considered compliant with the REAL-ID Act
of 2005.

Responses to the RFI are due by June 18, 2021.

The amendments to the REAL-ID Act signed into law at the end of 2021
included provisions authorizing the DHS to certify digital ID
credentials as “REAL-ID compliant”. That certification can’t happen,
though, until the DHS promulgates new regulations.

The RFI published in the Federal Register this week is not formerly
part of such a rulemaking, but appears to be part of the preparations
for it.

A “mobile ID” would consist of a certificate digitally signed by a
state department of motor vehicles. The RFI contemplates a process
through which “individuals would electronically send identity
verification information to the DMV to establish their identities and
ownership of the target device.” No explanation or justification is
provided for why or how a digitally-signed certificate would be, or
should be, bound to a specific device, rather than simply provided as
a file that can be stored on any digital device or storage medium.

It’s just as easy to loan a smartphone or other mobile device to
another person whose appearance is similar as it is to loan a physical
ID card to another person.

A drivers license rarely needs to be displayed, and in the form of a
wallet-sized plastic card it  can be kept in a relatively secure
pocket or compartment of a purse. A smartphone, in marked contrast, is
likely to be frequently consulted and carried in a location on one’s
person that is much more exposed and vulnerable to snatch-thieves than
one’s wallet.

A smartphone is already, for many people, vulnerable as a single point
of failure for identity and password management. Binding a digital ID
to a specific smartphone appears likely to increase the risk and
exacerbate the consequences of smartphone theft as a method of
identity theft.

The RFI says that the DHS is considering incorporating the American
Association of Motor Vehicle Administrators Mobile Driver License
(mDL) Implementation Guidelines (April 2019) in the DHS standards and
regulations, and the DHS seeks comments on those AAMVA guidelines. But
those AAMVA guidelines are posted only on the “members-only” portion
of the AAMVA website, and aren’t available to the public.

In the past, when we reposted specifications for the AAMVA’s national
REAL-ID database that AAMVA had posted for years on the public portion
of its website, AAMVA not only moved those specifications to to the
members-only portion of its website, but asserted their copyright and
threatened us with litigation to get us to take them off our site.

The DHS notice purporting to invite the public to submit comments on a
secret document, not available to the public, that might be
incorporated into DHS regulations, exemplifies everything that is
wrong with both secret law and the outsourcing of “lawmaking” to
entities such as AAMVA that are nominally private and not subject  to
Federal or state freedom of information, public records, or open
meetings laws.

There’s no indication in the RFI as to when or how the DHS plans to
move forward with the separate rulemaking and approval procedures that
will be required if it is to follow through on its threats to start
turning away would-be air travelers at TSA checkpoints if they don’t
have REAL-ID approved ID or don’t have or show any ID.
Edward Hasbrouck Posted in REAL ID, Secret Law	3 Comments
Apr 14 2021
More support for court challenge to TSA impunity

Two months ago, the last time we checked in on Sai v. TSA (now Sai v.
Pekoske) —  the landmark challenge to the TSA’s attempt to avoid ever
facing a Federal trial over its checkpoint procedures —  the disabled,
pro se plaintiff had been given what seemed an impossibly short
deadline by the 1st Cicruit Court of Appeals to file “hypothetical”
objections to whatever “orders” the TSA might have issued that
adversely affected them, without knowing what those orders might be.

Since then, we are pleased to report, things have been looking up for
Sai and for all those who would subject the TSA to the rule of law.

Jonathan Corbett, Esq., who has brought a series of lawsuits against
the TSA on his own behalf and that of his clients, stepped in to
represent Sai pro bono, and got a small extension of time.

Of necessity given the limited time and resources, the brief filed on
Sai’s behalf on April 2nd greatly narrows the issues presented. But it
continues to challenge the TSA’s claim that its checkpoint procedures
can’t be challenged or brought to trial in U.S. District Court, but
can only be “appealed” to Circuit Courts where no fact-finding can be
conducted and what constitutes the “record” to be (deferentially)
reviewed is defined by the TSA itself. Sai also continues to challenge
the TSA’s attempt to withhold self-defined “Sensitive Security
Information” from disclosure in response to Freedom of Information Act
(FOIA) requests.

Further strengthening Sai’s case against TSA impunity from trial or
judicial fact-finding, the Institute for Justice — which is moving
forward with its own challenge to systematically lawless TSA practices
— has intervened in Sai’s case against the TSA with a
friend-of-the-court brief and a request to participate in oral
argument before the Court of Appeals.

We fully endorse the latest arguments made by both Sai and IJ, and
look forward to having them given the consideration they deserve by
the 1st Circuit panel.
Edward Hasbrouck Posted in Secret Law	Leave a comment
Apr 12 2021
Connecting the DHS to the airline industry

A Request For Information (RFI) posted on a website for Federal
government contractors gives a glimpse into the degree to which the
Department of Homeland Security (DHS) has embedded itself into the
information technology infrastructure of the airline industry.

The RFI for Services to Electronically Transmit Airline Data was
posted April 5, 2021, by US Customs and Border Protection (CBP).
Responses from potential vendors are due by April 19, 2021.

CBP says it is “conducting market research to gain a greater
understanding of the full range of available options for services for
obtaining names and related information of passengers who are arriving
and departing the U.S. on commercial airlines.” Although the RFI was
put out by CBP, which surveils and controls international air travel
and cargo transport to and from the US, it appears to contemplate
integration with the parallel systems used by the Transportation
Security Administration (TSA) for data-driven surveillance and control
of domestic US air travel as well.

According to the RFI:

    CBP is evaluating transmission options for air carriers to use in
compliance with these requirements.

        The vendor must have established connectivity with the airline
        The vendor must be able to test and certify with the air
carriers, the vendor, CBP and TSA as required.

For those unfamiliar with the “parallel universe” of airline IT and
data communications networks, this RFI might best be conceptualized by
analogy to the specifications for the equipment — revealed by
whistleblower Mark Klein — that was installed in the facilities of
AT&T and other telecommunications companies to provide real-time
copies of message data to the National Security Agency (NSA).

While the NSA receives metadata about the movements of our messages in
the form of telephone calls, email messages, Web browsing, and other
Internet traffic, CBP receives metadata about the movements of our
physical bodies, whenever we travel by air, in the form of, according
to the RFI,  “Passenger Name Records (PNR), air cargo manifests,
advance passenger information (API), passenger manifests, and other
airline-related data.”

The TSA receives a similar but somewhat different dataset of all
domestic airline flights in the form of Secure Flight Passenger Data

The RFI requests information from vendors that already have  “an
available global private network primarily used by the aviation
industry to enable the aviation industry to send/receive API, PNR, and
other information to CBP and other entities.”

The gateways provided by these vendors would also, presumably,
position these vendors to serve other governments wanting to surveil
and control air travel while using common gateways to connect to
airlines without having to connect to each airline separately.

As the NSA did with telecommunications companies, CBP embeds itself in
vendors’ data centers and message switching hubs:

    The contractor shall provide the following to permit the
electronic transmission of airline data to CBP’s computer network and
host systems:

    Provide Ethernet Internet Protocol (IP) connections to the
contractor’s private global network. CBP routers are located on
vendor’s premises. Contractor provides physical space at their
datacenter(s) to include ¼ communications rack to house DHS/CBP
co-located equipment that connects to the contractor’s private global

Unlike the “black boxes” installed in AT&T and other
telecommunications and Internet switching centers to send mirror
copies of messages to the NSA, the CBP/DHS connection to the global
airline reservation cloud is bidirectional. The role of the DHS is not
limited to passive surveillance, which would require only a
unidirectional data feed.  DHS exercises positive permission-based
prior restraint and control of the issuance of each boarding pass,
which requires reliable real-time transmission of Boarding Pass
Printing Result (BPRR) permission messages from DHS to airline
check-in counters and Web check-in systems worldwide.

Currently, each airline has the option of connecting directly to CBP
for bi-directional  transmission of PNR and API data and receipt of
BPPR messages through a virtual private network using CBP-specified
protocols and vendors, or connecting to DHS through one of two vendors
approved by CBP to act as intermediaries: ARINC or SITA.

Read More →
Edward Hasbrouck Posted in Freedom To Travel, Surveillance State	1 Comment
Apr 08 2021
TSA posts video showing how you can fly without ID

For years Transportation Security Administration (TSA) and Department
of Homeland Security (DHS) officials and their state government
collaborators have been repeating the big lie that all airline
passengers must have government-issued ID credentials. That lie has
been included in TSA and DHS press releases, airport signage, and
Tweets from the official DHS and TSA accounts.

This public relations lie has been disclaimed, over and over, in TSA
and DHS court filings and sworn testimony. But now it has been
contradicted on the TSA’s official Twitter feed.

Tonight the TSA Tweeted a video showing some of the ways you can fly
without “acceptable” ID or without any ID at all.

If the TSA deems your ID “unacceptable”, you can still fly if you can
show two or more pieces of suitable (according to the TSA’s ecret
non-rules) although “unacceptable” ID.

The TSA video also shows that even if you have no ID at all, you can
fly if your answers to questions relayed by phone by the TSA’s ID
Verification Call Center match the information in the (secret) file of
information that has been linked to you by the commercial data
aggregator Accurint (originally part of the discredited “Total
Information Awareness” program but now a division of Lexis-Nexis).

No ID at all, much less “acceptable” ID,  is actually required to fly.
So changes in REAL-ID Act regulations or TSA/DHS orders to airlines as
to what ID is “acceptable” are irrelevant to whether you have right to
fly without ID. Nothing in the REAL-ID Act negates this right.

In the screengrab above (one minute in), the video) shows a traveler
filling out a copy of TSA Form 415, “Certification of Identity”. The
TSA has been using versions of this form illegally since at least
2008, without ever having obtained the approval from the Office of
Management and Budget (OMB) required before any collection of
information such as this by a Federal agency. The TSA has twice said
it intends to seek approval from OMB for Form 415. But in the face of
our objections, the TSA has yet to request, much less obtain, that
approval. It’s unclear whether when the TSA will actually do so.

To avoid having to give public notice of its planned information
collection or respond to our objections, the TSA tried to get Congress
to enact a special airport exception from  the Paperwork Reduction Act
(PRA). But Congress declined to do so.  It’s unclear whether and if so
when the TSA will actually apply to OMB for the required approval, or
what additional illegal actions it may try to take in the meantime.

All use of both Form 415 and the associated questioning of travelers
continues to be in violation of the PRA. As we noted in 2008 when the
TSA first started asking travelers to fill out the form later labeled
Form 415, the PRA provides an absolute defense against any sanctions
the TSA might try to impose for refusing to fill out this unapproved
form or cooperate with the TSA’s “20 questions” game of ID
verification security theater.

Travelers can and should say no. Fly without ID, and exercise your
right to remain silent.
Edward Hasbrouck Posted in Papers, Please, REAL ID	3 Comments
Apr 07 2021
4th Circuit panel rejects rights to travel and to due process

In one of the worst court decisions on the right to travel since
Gilmore v. Gonzales,  a three-judge panel of the 4th Circuit Court of
Appeals has reversed the decision of a U.S. District Court in the case
of Elhady v. Kable that  the U.S. government’s system of extrajudicial
administrative blacklists (euphemistically and inaccurate called
“watchlists” although the consequences for the people who are listed
include much more then merely being “watched”) is unconstitutional.

The decision comes in a class-action lawsuit brought on behalf of
blacklisted Muslim  American travelers in 2018 by the Council on
American Islamic Relations (CAIR). It folows a disturbing trend of
decisions in similar cases by courts in the 6th Circuit and the 10th

According to Gadeir Abbas, the CAIR attorney who has led the national
campaign of lawsuits (many others of which are still pending) against
post-9/11 blacklists, CAIR plans to petition for “rehearing en banc”
by the 4th Circuit Court of Appeals:

    A three-judge panel on the Fourth Circuit reversed a historic U.S.
District Court decision that declared the entirety of the watchlist
unconstitutional. In doing so, the judges ignored the dire
consequences experienced by American citizens placed on the watchlist
and took a dim view of what the Constitution requires. We are
disappointed in this decision, but we remain undeterred. The fight is
not over. CAIR will now ask the entire Fourth Circuit to review the

The 4th Circuit panel gets off on the wrong foot by declaring that it
is reviewing a challenge to a “system vital to public safety”, despite
the absence of any finding by the District Court to that effect or any
evidence in the record to support such a claim. In fact,
watchlists/blacklists are based on anything but actual dangerousness.
If an individual were actually demonstrably dangerous, the government
could and should either arrest them or apply to a court for an
injunction restricting their dangerous actions. But the government has
never done that with any of the people it has blacklisted.

The 4th Circuit panel opinion is dismissive of almost every aspect of
the right to travel or of due process. It finds that
government-imposed travel delays of hours or perhaps even days aren’t
sufficient interference with the right to travel to constitute a
legally-cognizable infringement of the right to travel, and that
denial of air transport is Constitutionally insignificant because,
“Plaintiffs can travel internationally by boat.”

Despite acknowledging that the blacklists/watchlists were “created by
executive order” and not by any Congressional action, and that the
Terrorist Screening Center “receives around 113,000 nominations
annually and around 99% are accepted,” the 4th Circuit panel finds
that no judicial review of these decisions is necessary.

Relying on an outdated history of entry and exit procedures when an
intercontinental journey took weeks, and a delay of hours or days
would only lengthen the journey time by a small percentage, the 4th
Circuit panel brushes off the detention (in many cases at gunpoint),
interrogation, and search of the plaintiffs. “Delays and
inconveniences at the borders are… as old as the nation itself…. The
experiences alleged by plaintiffs do not rise to the level of
constitutional concern…. Given the government’s broad power to control
movement across the nation’s borders, the burdens experienced by
plaintiffs are not infringements of  ‘liberty’ within the meaning of
the Due Process Clause.”

We join CAIR and the many friends of the court who fiuled briefs in
support of the plaintiffs in Elhady v. Kable in looking forward to en
banc rehearing and reversal of this ill-founded decision.
Edward Hasbrouck Posted in Freedom To Travel, Secret Law	Leave a comment
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IDP explores and defends the fundamental American right to move freely
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    DHS still evades review of no-fly orders June 17, 2021
    A race to the bottom: DHS “Biometric Tech Rally” May 19, 2021
    ACLU: “Digital IDs Could Be a Nightmare” May 17, 2021
    More DHS “pre-crime” policing, but still no real “precogs” May 14, 2021
    DHS extends REAL-ID airport enforcement “deadline” again April 27, 2021

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