[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4922 Introduced in House (IH)]
103d CONGRESS
2d Session
H. R. 4922
To amend title 18, United States Code, to make clear a
telecommunications carrier's duty to cooperate in the interception of
communications for law enforcement purposes, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
August 9, 1994
Mr. Edwards of California (for himself and Mr. Hyde) introduced the
following bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 18, United States Code, to make clear a
telecommunications carrier's duty to cooperate in the interception of
communications for law enforcement purposes, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. INTERCEPTION OF DIGITAL AND OTHER COMMUNICATIONS.
(a) In General.--Part I of title 18, United States Code, is amended
by inserting after chapter 119 the following new chapter:
``CHAPTER 120--TELECOMMUNICATIONS CARRIER ASSISTANCE TO THE GOVERNMENT
``Sec.
``2601. Definitions.
``2602. Assistance capability requirements.
``2603. Notices of capacity requirements.
``2604. Systems security and integrity.
``2605. Cooperation of equipment manufacturers and providers of
telecommunications support services.
``2606. Technical requirements and standards; extension of compliance
date.
``2607. Enforcement orders.
``2608. Reimbursement of telecommunications carriers.
``Sec. 2601. Definitions
``(a) Definitions.--In this chapter--
``the terms defined in section 2510 have, respectively, the
meanings stated in that section.
```call-identifying information'--
``(A) means all dialing or signalling information
associated with the origin, direction, destination, or
termination of each communication generated or received
by the subscriber equipment, facility, or service of a
telecommunications carrier that is the subject of a
court order or lawful authorization; but
``(B) does not include any information that may
disclose the physical location of the subscriber
(except to the extent that the location may be
determined from the telephone number).
```Commission' means the Federal Communications Commission.
```government' means the government of the United States
and any agency or instrumentality thereof, the District of
Columbia, any commonwealth, territory, or possession of the
United States, and any State or political subdivision thereof
authorized by law to conduct electronic surveillance.
```information services'--
``(A) means the offering of a capability for
generating, acquiring, storing, transforming,
processing, retrieving, utilizing, or making available
information via telecommunications; and
``(B) includes electronic publishing and messaging
services; but
``(C) does not include any use of any such
capability for the management, control, or operation of
a telecommunications system or the management of a
telecommunications service.
```provider of telecommunications support services' means a
person or entity that provides a product, software, or service
to a telecommunications carrier that is integral to such
carrier's switching or transmission of wire or electronic
communications.
```telecommunications carrier'--
``(A) means a person or entity engaged in the
transmission or switching of wire or electronic
communications as a common carrier for hire (within the
meaning of section 3(h) of the Communications Act of
1934 (47 U.S.C. 153(h))); and
``(B) includes--
``(i) a person or entity engaged in
providing commercial mobile service (as defined
in section 332(d) of the Communications Act of
1934 (47 U.S.C. 332(d))); and
``(ii) a person or entity engaged in
providing wire or electronic communication
switching or transmission service to the extent
that the Commission finds that such service is
a replacement for a substantial portion of the
local telephone exchange service and that it is
in the public interest to deem such a person or
entity to be a telecommunications carrier for
purposes of this chapter; but
``(C) does not include persons or entities insofar
as they are engaged in providing information services.
``Sec. 2602. Assistance capability requirements
``(a) Capability Requirements.--Except as provided in subsections
(b), (c), and (d) of this section, and subject to section 2607(c), a
telecommunications carrier shall ensure that its services or facilities
that provide a customer or subscriber with the ability to originate,
terminate, or direct communications are capable of--
``(1) expeditiously isolating and enabling the government
to intercept, to the exclusion of any other communications, all
wire and electronic communications carried by the carrier
within a service area to or from equipment, facilities, or
services of a subscriber of such carrier concurrently with
their transmission to or from the subscriber's service,
facility, or equipment or at such later time as may be
acceptable to the government;
``(2) expeditiously isolating and enabling the government
to access call-identifying information that is reasonably
available to the carrier--
``(A) before, during, or immediately after the
transmission of a wire or electronic communication (or
at such later time as may be acceptable to the
government); and
``(B) in a manner that allows it to be associated
with the communication to which it pertains,
except that, with regard to information acquired solely
pursuant to the authority for pen registers and trap and trace
devices (as defined in section 3127), such call-identifying
information shall not include any information that may disclose
the physical location of the subscriber (except to the extent
that the location may be determined from the telephone number);
``(3) delivering intercepted communications and call-
identifying information to the government in a format such that
they may be transmitted by means of facilities or services
procured by the government to a location other than the
premises of the carrier; and
``(4) facilitating authorized communications interceptions
and access to call-identifying information unobtrusively and
with a minimum of interference with any subscriber's
telecommunications service and in a manner that protects--
``(A) the privacy and security of communications
and call-identifying information not authorized to be
intercepted; and
``(B) information regarding the government's
interception of communications and access to call-
identifying information.
``(b) Limitations.--
``(1) Design of features and systems configurations.--This
chapter does not authorize any law enforcement agency or
officer--
``(A) to require any specific design of features or
system configurations to be adopted by providers of
wire or electronic communication service, manufacturers
of telecommunications equipment, or providers of
telecommunications support services; or
``(B) to prohibit the adoption of any feature or
service by providers of wire or electronic
communication service, manufacturers of
telecommunications equipment, or providers of
telecommunications support services.
``(2) Information services and interconnection services and
facilities.--The requirements of subsection (a) do not apply
to--
``(A) information services; or
``(B) services or facilities that support the
transport or switching of communications for the sole
purpose of interconnecting telecommunications carriers
or private networks.
``(3) Encryption.--A telecommunications carrier shall not
be responsible for decrypting, or ensuring the government's
ability to decrypt, any communication encrypted by a subscriber
or customer, unless the encryption was provided by the carrier
and the carrier possesses the information necessary to decrypt
the communication.
``(c) Emergency or Exigent Circumstances.--In emergency or exigent
circumstances (including those described in sections 2518 (7) or
(11)(b) and 3125 of this title and section 1805(e) of title 50), a
carrier may fulfill its responsibilities under subsection (a)(3) by
allowing monitoring at its premises if that is the only means of
accomplishing the interception or access.
``(d) Mobile Service Assistance Requirements.--A telecommunications
carrier offering a feature or service that allows subscribers to
redirect, hand off, or assign their wire or electronic communications
to another service area or another service provider or to utilize
facilities in another service area or of another service provider shall
ensure that, when the carrier that had been providing assistance for
the interception of wire or electronic communications or access to
call-identifying information pursuant to a court order or lawful
authorization no longer has access to the content of such
communications or call-identifying information within the service area
in which interception has been occurring as a result of the
subscriber's use of such a feature or service, information is available
to the government (before, during, or immediately after the transfer of
such communications) identifying the provider of wire or electronic
communication service that has acquired access to the communications.
``Sec. 2603. Notices of capacity requirements
``(a) Notices of Maximum and Initial Capacity Requirements.--
``(1) In general.--Not later than 1 year after the date of
enactment of this chapter, and after consulting with State and
local law enforcement agencies, telecommunications carriers,
providers of telecommunications support services, and
manufacturers of telecommunications equipment, the Attorney
General shall publish in the Federal Register and provide to
appropriate telecommunications carrier associations, standard-
setting organizations, and fora--
``(A) notice of the maximum capacity required to
accommodate all of the communication interceptions, pen
registers, and trap and trace devices that the Attorney
General estimates that government agencies authorized
to conduct electronic surveillance may conduct and use
simultaneously; and
``(B) notice of the number of communication
interceptions, pen registers, and trap and trace
devices, representing a portion of the maximum capacity
set forth under subparagraph (A), that the Attorney
General estimates that government agencies authorized
to conduct electronic surveillance may conduct and use
simultaneously after the date that is 4 years after the
date of enactment of this chapter.
``(2) Basis of notices.--The notices issued under paragraph
(1) may be based upon the type of equipment, type of service,
number of subscribers, geographic location, or other measure.
``(b) Compliance With Capacity Notices.--
``(1) Initial capacity.--Within 3 years after the
publication by the Attorney General of a notice of capacity
requirements or within 4 years after the date of enactment of
this chapter, whichever is longer, a telecommunications carrier
shall ensure that its systems are capable of--
``(A) expanding to the maximum capacity set forth
in the notice under paragraph (1)(A); and
``(B) accommodating simultaneously the number of
interceptions, pen registers, and trap and trace
devices set forth in the notice under paragraph (1)(B).
``(2) Permanent capacity.--After the date described in
paragraph (1), a telecommunications carrier shall ensure that
it can accommodate expeditiously any increase in the number of
communication interceptions, pen registers, and trap and trace
devices that authorized agencies may seek to conduct and use,
up to the maximum capacity requirement set forth in the notice
under paragraph (1)(A).
``(c) Notices of Increased Maximum Capacity Requirements.--
``(1) The Attorney General shall periodically provide to
telecommunications carriers written notice of any necessary
increases in the maximum capacity requirement set forth in the
notice under subsection (b)(1).
``(2) Within 3 years after receiving written notice of
increased capacity requirements under paragraph (1), or within
such longer time period as the Attorney General may specify, a
telecommunications carrier shall ensure that its systems are
capable of expanding to the increased maximum capacity set
forth in the notice.
``Sec. 2604. Systems security and integrity
``A telecommunications carrier shall ensure that any court ordered
or lawfully authorized interception of communications or access to
call-identifying information effected within its switching premises can
be activated only with the affirmative intervention of an individual
officer or employee of the carrier.
``Sec. 2605. Cooperation of equipment manufacturers and providers of
telecommunications support services
``(a) Consultation.--A telecommunications carrier shall consult, as
necessary, in a timely fashion with manufacturers of its
telecommunications transmission and switching equipment and its
providers of telecommunications support services for the purpose of
identifying any service or equipment, including hardware and software,
that may require modification so as to permit compliance with this
chapter.
``(b) Modification of Equipment and Services.--Subject to section
2607(c), a manufacturer of telecommunications transmission or switching
equipment and a provider of telecommunications support services shall,
on a reasonably timely basis and at a reasonable charge, make available
to the telecommunications carriers using its equipment or services such
modifications as are necessary to permit such carriers to comply with
this chapter.
``Sec. 2606. Technical requirements and standards; extension of
compliance date
``(a) Safe Harbor.--
``(1) Consultation.--To ensure the efficient and industry-
wide implementation of the assistance capability requirements
under section 2602, the Attorney General, in coordination with
other Federal, State, and local law enforcement agencies, shall
consult with appropriate associations and standard-setting
organizations of the telecommunications industry.
``(2) Compliance under accepted standards.--A
telecommunications carrier shall be found to be in compliance
with the assistance capability requirements under section 2602,
and a manufacturer of telecommunications transmission or
switching equipment or a provider of telecommunications support
services shall be found to be in compliance with section 2605,
if the carrier, manufacturer, or support service provider is in
compliance with publicly available technical requirements or
standards are adopted by an industry association or standard-
setting organization or by the Commission under subsection (b)
to meet the requirements of section 2602.
``(3) Absence of standards.--The absence of technical
requirements or standards for implementing the assistance
capability requirements of section 2602 shall not--
``(A) preclude a carrier, manufacturer, or services
provider from deploying a technology or service; or
``(B) relieve a carrier, manufacturer, or service
provider of the obligations imposed by section 2602 or
2605, as applicable.
``(b) FCC Authority.--
``(1) In general.--If industry associations or standard-
setting organizations fail to issue technical requirements or
standards or if a government agency or any other person
believes that such requirements or standards are deficient, the
agency or person may petition the Commission to establish, by
notice and comment rulemaking or such other proceedings as the
Commission may be authorized to conduct, technical requirements
or standards that--
``(A) meet the assistance capability requirements
of section 2602;
``(B) protect the privacy and security of
communications not authorized to be intercepted; and
``(C) serve the policy of the United States to
encourage the provision of new technologies and
services to the public.
``(2) Transition period.--If an industry technical
requirement or standard is set aside or supplanted as a result
of Commission action under this section, the Commission, after
consultation with the Attorney General, shall establish a
reasonable time and conditions for compliance with and the
transition to any new standard, including defining the
obligations of telecommunications carriers under section 2602
during any transition period.
``(c) Extension of Compliance Date for Features and Services.--
``(1) Petition.--A telecommunications carrier proposing to
deploy, or having deployed, a feature or service within 4 years
after the date of enactment of this chapter may petition the
Commission for 1 or more extensions of the deadline for
complying with the assistance capability requirements under
section 2602.
``(2) Ground for extension.--The Commission may, after
affording a full opportunity for hearing and after consultation
with the Attorney General, grant an extension under this
paragraph, if the Commission determines that compliance with
the assistance capability requirements under section 2602 is
not reasonably achievable through application of technology
available within the compliance period.
``(3) Length of extension.--An extension under this
paragraph shall extend for no longer than the earlier of--
``(A) the date determined by the Commission as
necessary for the carrier to comply with the assistance
capability requirements under section 2602; or
``(B) the date that is 2 years after the date on
which the extension is granted.
``(4) Applicability of extension.--An extension under this
subsection shall apply to only that part of the carrier's
business on which the new feature or service is used.
``Sec. 2607. Enforcement orders
``(a) Enforcement by Court Issuing Surveillance Order.--If a court
authorizing an interception under chapter 119, a State statute, or the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.)
or authorizing use of a pen register or a trap and trace device under
chapter 206 or a State statute finds that a telecommunications carrier
has failed to comply with the requirements in this chapter, the court
may direct that the carrier comply forthwith and may direct that a
provider of support services to the carrier or the manufacturer of the
carrier's transmission or switching equipment furnish forthwith
modifications necessary for the carrier to comply.
``(b) Enforcement Upon Application by Attorney General.--The
Attorney General may apply to the appropriate United States district
court for, and the United States district courts shall have
jurisdiction to issue, an order directing that a telecommunications
carrier, a manufacturer of telecommunications transmission or switching
equipment, or a provider of telecommunications support services comply
with this chapter.
``(c) Grounds for Issuance.--A court shall issue an order under
subsection (a) or (b) only if the court finds that--
``(1) alternative technologies or capabilities or the
facilities of another carrier are not reasonably available to
law enforcement for implementing the interception of
communications or access to call-identifying information; and
``(2) compliance with the requirements of this chapter is
reasonably achievable through the application of available
technology to the feature or service at issue or would have
been reasonably achievable if timely action had been taken.
``(d) Time for Compliance.--Upon issuance of an enforcement order
under this section, the court shall specify a reasonable time and
conditions for complying with its order, considering the good faith
efforts to comply in a timely manner, any effect on the carrier's,
manufacturer's, or service provider's ability to continue to do
business, the degree of culpability or delay in undertaking efforts to
comply, and such other matters as justice may require.
``(e) Limitation.--An order under this section may not require a
telecommunications carrier to meet the government's demand for
interception of communications and acquisition of call-identifying
information to any extent in excess of the capacity for which notice
has been provided under section 2603.
``(f) Civil Penalty.--
``(1) In general.--A court issuing an order under this
section against a telecommunications carrier, a manufacturer of
telecommunications transmission or switching equipment, or a
provider of telecommunications support services may impose a
civil penalty of up to $10,000 per day for each day in
violation after the issuance of the order or after such future
date as the court may specify.
``(2) Considerations.--In determining whether to impose a
fine and in determining its amount, the court shall take into
account--
``(A) the nature, circumstances, and extent of the
violation;
``(B) the violator's ability to pay, the violator's
good faith efforts to comply in a timely manner, any
effect on the violator's ability to continue to do
business, the degree of culpability, and the length of
any delay in undertaking efforts to comply; and
``(C) such other matters as justice may require.
``(3) Civil action.--The Attorney General may file a civil
action in the appropriate United States district court to
collect, and the United States district courts shall have
jurisdiction to impose, such fines.
``Sec. 2608. Reimbursement of telecommunications carriers
``(a) In General.--The Attorney General shall, subject to the
availability of appropriations, reimburse telecommunications carriers
for all reasonable costs directly associated with--
``(1) the modifications performed by carriers prior to the
effective date of section 2602 or prior to the expiration of
any extension granted under section 2606(c) to establish the
capabilities necessary to comply with section 2602;
``(2) meeting the maximum capacity requirements set forth
in the notice under section 2603(a)(1)(A); and
``(3) expanding existing facilities to accommodate
simultaneously the number of interceptions, pen registers and
trap and trace devices for which notice has been provided under
section 2603(a)(1)(B).
``(b) Procedures and Regulations.--Notwithstanding any other law,
the Attorney General may establish any procedures and regulations
deemed necessary to effectuate timely and cost-efficient reimbursement
to telecommunications carriers for reimbursable costs incurred under
this chapter, under chapters 119 and 121, and under the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
``(c) Dispute Resolution.--If there is a dispute between the
Attorney General and a telecommunications carrier regarding the amount
of reasonable costs to be reimbursed under subsection (b), the dispute
shall be resolved and the amount determined in a proceeding initiated
at the Commission under section 2606(b) or by the court from which an
enforcement order is sought under section 2607.
``(d) Lack of Appropriated Funds.--The lack of appropriated funds
sufficient to reimburse telecommunications carriers for modifications
under subsection (a) shall be considered by the Commission or a court
in determining whether compliance is reasonable under section
2607(c).''.
(b) Technical Amendment.--The part analysis for part I of title 18,
United States Code, is amended by inserting after the item relating to
chapter 119 the following new item:
``120. Telecommunications carrier assistance to the 2601''.
Government.
SEC. 2. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to carry out section 2608
of title 18, United States Code, as added by section 1--
(1) a total of $500,000,000 for fiscal years 1995, 1996,
1997, and 1998; and
(2) such sums as are necessary for each fiscal year
thereafter.
SEC. 3. EFFECTIVE DATE.
(a) In General.--Except as provided in paragraph (2), chapter 120
of title 18, United States Code, as added by section 1, shall take
effect on the date of enactment of this Act.
(b) Assistance Capability and Systems Security and Integrity
Requirements.--Sections 2602 and 2604 of title 18, United States Code,
as added by section 1, shall take effect on the date that is 4 years
after the date of enactment of this Act.
SEC. 4. REPORTS.
(a) Reports by the Attorney General.--
(1) In general.--On or before November 30, 1995, and on or
before November 30 of each year for 5 years thereafter, the
Attorney General shall submit to the Congress a report on the
amounts paid during the preceding fiscal year in reimbursement
to telecommunications carriers under section 2608 of title 18,
United States Code, as added by section 1.
(2) Contents.--A report under paragraph (1) shall include--
(A) a detailed accounting of the amounts paid to
each carrier and the technology, feature or service for
which the amounts were paid; and
(B) projections of the amounts expected to be paid
in the current fiscal year, the carriers to which
reimbursement is expected to be paid, and the
technologies, services, or features for which
reimbursement is expected to be paid.
(b) Reports by the Comptroller General.--
(1) In general.--On or before April 1, 1996, and April 1,
1998, the Comptroller General of the United States, after
consultation with the Attorney General and the
telecommunications industry, shall submit to the Congress a
report reflecting its audit of the sums paid by the Attorney
General to carriers in reimbursement.
(2) Contents.--A report under paragraph (1) shall include
the findings and conclusions of the Comptroller General on the
costs to be incurred after the compliance date, including
projections of the amounts expected to be incurred and the
technologies, services, or features for which expenses are
expected to be incurred.
SEC. 5. CORDLESS TELEPHONES.
(a) Definitions.--Section 2510 of title 18, United States Code, is
amended--
(1) in paragraph (1) by striking ``but such term does not
include'' and all that follows through ``base unit''; and
(2) in paragraph (12) by striking subparagraph (A) and
redesignating subparagraphs (B), (C), and (D) as subparagraphs
(A), (B), and (C), respectively.
(b) Penalty.--Section 2511 of title 18, United States Code, is
amended--
(1) in subsection (4)(b)(i) by inserting ``a cordless
telephone communication that is transmitted between the
cordless telephone handset and the base unit,'' after
``cellular telephone communication,''; and
(2) in subsection (4)(b)(ii) by inserting ``a cordless
telephone communication that is transmitted between the
cordless telephone handset and the base unit,'' after
``cellular telephone communication,''.
SEC. 6. RADIO-BASED DATA COMMUNICATIONS.
Section 2510(16) of title 18, United States Code, is amended--
(1) by striking ``or'' at the end of subparagraph (D);
(2) by inserting ``or'' at the end of subparagraph (E); and
(3) by inserting after subparagraph (E) the following new
subparagraph:
``(F) an electronic communication;''
SEC. 7. PENALTIES FOR MONITORING RADIO COMMUNICATIONS THAT ARE
TRANSMITTED USING MODULATION TECHNIQUES WITH NONPUBLIC
PARAMETERS.
Section 2511(4)(b) of title 18, United States Code, is amended by
striking ``or encrypted, then'' and inserting ``, encrypted, or
transmitted using modulation techniques the essential parameters of
which have been withheld from the public with the intention of
preserving the privacy of such communication''.
SEC. 8. TECHNICAL CORRECTION.
Section 2511(2)(a)(i) of title 18, United States Code, is amended
by striking ``used in the transmission of a wire communication'' and
inserting ``used in the transmission of a wire or electronic
communication''.
SEC. 9. FRAUDULENT ALTERATION OF COMMERCIAL MOBILE RADIO INSTRUMENTS.
(a) Offense.--Section 1029(a) of title 18, United States Code, is
amended--
(1) by striking ``or'' at the end of paragraph (3); and
(2) by inserting after paragraph (4) the following new
paragraphs:
``(5) knowingly and with intent to defraud uses, produces,
traffics in, has control or custody of, or possesses a
telecommunications instrument that has been modified or altered
to obtain unauthorized use of telecommunications services; or
``(6) knowingly and with intent to defraud uses, produces,
traffics in, has control or custody of, or possesses--
``(A) a scanning receiver; or
``(B) hardware or software used for altering or
modifying telecommunications instruments to obtain
unauthorized access to telecommunications services,''.
(b) Penalty.--Section 1029(c)(2) of title 18, United States Code,
is amended by striking ``(a)(1) or (a)(4)'' and inserting ``(a) (1),
(4), (5), or (6)''.
(c) Definitions.--Section 1029(e) of title 18, United States Code,
is amended--
(1) in paragraph (1) by inserting ``electronic serial
number, mobile identification number, personal identification
number, or other telecommunications service, equipment, or
instrument identifier,'' after ``account number,'';
(2) by striking ``and'' at the end of paragraph (5);
(3) by striking the period at the end of paragraph (6) and
inserting ``; and''; and
(4) by adding at the end the following new paragraph:
``(7) the term `scanning receiver' means a device or
apparatus that can be used to intercept a wire or electronic
communication in violation of chapter 119.''.
SEC. 10. TRANSACTIONAL DATA.
(a) Disclosure of Records.--Section 2703 of title 18, United States
Code, is amended--
(1) in subsection (c)--
(A) in subparagraph (B)--
(i) by striking clause (i); and
(ii) by redesignating clauses (ii), (iii),
(iv) as clauses (i), (ii), and (iii),
respectively; and
(B) by adding at the end the following new
subparagraph:
``(C) A provider of electronic communication
service or remote computing service shall disclose to a
governmental entity the name, billing address, and
length of service of a subscriber to or customer of
such service and the types of services the subscriber
or customer utilized, when the governmental entity uses
an administrative subpoena authorized by a Federal or
State statute or a Federal or State grand jury or trial
subpoena or any means available under subparagraph
(B).''; and
(2) by amending the first sentence of subsection (d) to
read as follows: ``A court order for disclosure under
subsection (b) or (c) may be issued by any court that is a
court of competent jurisdiction described in section 3126(2)(A)
and shall issue only if the governmental entity offers specific
and articulable facts showing that there are reasonable grounds
to believe that the contents of a wire or electronic
communication, or the records or other information sought, are
relevant and material to an ongoing criminal investigation.''.
(b) Pen Registers and Trap and Trace Devices.--Section 3121 of
title 18, United States Code, is amended--
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following new
subsection:
``(c) Limitation.--A government agency authorized to install and
use a pen register under this chapter or under State law, shall use
technology reasonably available to it that restricts the recording or
decoding of electronic or other impulses to the dialing and signalling
information utilized in call processing.''.
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