Vox: If The Clinton Email Scandal Has Taught Us Nothing Else, It's That Email Should Be Exempt From FOIA Requests

from the wat dept

You don't often see a journalist argue for more government secrecy. In fact, you never see this. This makes Matt Yglesias' piece for Vox more than an oddity. His argument for a broad FOIA exemption covering the single most-used form of government communications appears to be motivated by two things:

1. His belief that nearly anything critical of Hillary Clinton is overblown.

2. He doesn't like talking on the phone.

When Yglesias seeks a comment from a public official, they often want to call. Why? Because a phone call doesn't create a permanent record of the conversation. This is exactly why journalists would much rather take comments in the form of an email. Or should want to. It's a much better reason than Yglesias', which is that he just doesn't want to be hassled by phone calls. Yglesias feels the real problem here isn't public officials not wanting to go on the record, but the Freedom of Information Act's supposedly inconsistent take on communications.

The issue is that while common sense sees email and phone calls as close substitutes, federal transparency law views them very differently. The relevant laws were written decades ago, in an era when the dichotomy between written words (memos and letters) and spoken words (phone calls and meetings) was much starker than it is today. And because they are written down, emails are treated like formal memos rather than like informal conversations. They are archived, and if journalists or ideologically motivated activists want to get their hands on them, they can.

This argument might make some sense if Yglesias had ever advocated for the alteration of federal statutes like the Electronic Communications Privacy Act or the Third Party Doctrine that have been abused for years by government agencies with complete disregard for wholesale changes in personal communication preferences. (Under the Yglesias theory, phone calls = emails, so the government should need a wiretap warrant to access the contents of these communications, rather than just regular search warrants.)

Furthermore, he's simply wrong about the FOIA's treatment of phone calls and emails. If a public record is generated by a phone call, it too can be accessed with a FOIA request. One example would be 911 calls, which are always recorded and are considered public records.

This was pointed out to Yglesias by USA Today journalist Steve Reilly. Yglesias responded once, indicating he was making a point, rather than aiming for accuracy.

But searching through the hundreds of pieces Yglesias has written won't uncover anything that indicates he feels the American public should also be a beneficiary of updated laws that better reflect the shift away from phone calls as a primary communications method. It's too late for Hillary Clinton to benefit from this proposed alteration, but presumably other politicians Yglesias cares deeply for will find themselves freed from the tyranny of transparency.

Part of Yglesias' argument for a blanket email exception is that these are often informal communications -- not really the sort of thing the government should feel compelled to hand over. Yglesias says there's "no public interest" in documents that don't contain official policy directives, etc. But he's wrong. There's an incredible amount of public interest in government communications, as these often provide glimpses of the government's inner workings that just aren't visible when boiled down to policy memos and talking points.

His next justification, however, is baffling in its inadvertent self-contradiction.

Under current law, if Bill Clinton wants to ask his wife to do something wildly inappropriate as a favor to one of his Clinton Foundation donors, all he has to do is ask her in person. But disclosure laws sit as a constant threat to the adoption and use of efficient communications tools. Your smartphone isn’t primarily for making phone calls, but the stuff you do on your “phone” — communicating with other human beings in your life — is the social and economic equivalent of a phone call. It ought to be legally treated that way too.

In other words, public figures have a number of ways to avoid generating public records about questionable activities. The solution, according to Yglesias, is to GIVE THEM ANOTHER ONE.

Yglesias says there are all sort of communications government officials should never need to worry about being made public. This will supposedly give us a more "effective" government, unconstrained by worries about what the public might think.

There are a lot of things that colleagues might have good reason to say to one another in private that would nonetheless be very damaging if they went viral on Facebook:

  • Healthy brainstorming processes often involve tossing out bad or half-baked ideas in order to stimulate thought and elevate better ones.
  • A realistic survey of options may require a blunt assessment of the strengths and weaknesses of different members of the team or of outside groups that would be insulting if publicized.
  • Policy decisions need to be made with political sustainability in mind, but part of making a politically sustainable policy decision is you don’t come out and say you made the decision with politics in mind.
  • Someone may want to describe an actual or potential problem in vivid terms to spur action, without wanting to provoke public panic or hysteria through public discussion.
  • If a previously embarked-upon course of action isn’t working, you may want to quietly change course rather than publicly admit failure.

It's as if Yglesias is completely unaware that there are existing FOIA exemptions that cover the sort of "deliberative documents" that these conversations -- if handled via email -- would generate.

Not that it ultimately matters. Yglesias' argument is in service of Hillary Clinton and those like her, rather than journalists, the public, or anyone else not so wholeheartedly engaged in supporting this particular presidential candidate.

But in the context of the Clinton email scandal -- which Yglesias himself says can't be "ignored" when discussing a shift away from government transparency -- this proposal would have prevented the public from learning the following about the leading presidential candidate:

- She deployed her own private email server despite being warned against doing so, and while receiving input from other officials who hinted it might be a good way to route around public record requirements.

- She handled classified information carelessly and incompetently.

This is stuff the public needs to know, but Yglesias apparently feels anything contained in a public official's inbox should be treated as the ephemeral contents of a phone call or a whispered conversation. And he offers up this proposal with seemingly complete unawareness of how combative the FOIA process already is -- and how often the government stalls, levies fees, abuses exemptions, performs deliberately inadequate searches, etc. to further distance requesters from the records they not only seek, but federal law says they're entitled to.

And, if you think I'm being too harsh on Yglesias for taking an implicit pro-Clinton stance in his call for less government transparency, his track record speaks for itself. This is why we steer clear of partisanship here at Techdirt. This makes advocating for greater transparency, changes in law, etc. sincere, rather than motivated by how it will affect various writers' "teams."

Yglesias has dug himself into a hole with this article. He'll presumably keep his head down when politicians he doesn't care for start making noise about "too much transparency." This post shows he's not quite the journalist he believes he is and his ignorance of the reality of the FOIA process is on full display. In support of god-knows-what, Yglesias is calling for the most common method of government communication to become the government's most-used FOIA dodge. That's a dangerous proposal, especially when issued by a self-professed member of the Fourth Estate, whose job it is to help rein in the government and hold it accountable -- not give it more ideas on how to hide stuff from the people paying for it.


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  • icon
    JoeCool (profile), 8 Sep 2016 @ 8:43am

    Point of View

    His point seems weird because it's not aimed at us, it's aimed at his top 1% buddies. See, his point is that the rich and powerful USED to have a privilege that has been eroded by the FOIA and modern communications, so now they need to be given that privilege back by changing the FOIA to cover the change in communications. Rich and powerful everywhere are nodding and cheering while the rest of us shake our heads at the nonsense.

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  • icon
    Vidiot (profile), 8 Sep 2016 @ 8:59am

    "Part of Yglesias' argument for a blanket email exception is that these are often informal communications..."

    Kinda like phone conversations, which can be formal, on-the-record statements, or just shootin' the shit.

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    • icon
      JoeCool (profile), 8 Sep 2016 @ 10:55am

      Re:

      FOIA doesn't cover ALL email, just GOVERNMENT email. That's why the government has its own email and everyone has an account - they're supposed to use it for official work and that official work should be public. Complaining about FOIA on gov email is like complaining about an employer wanting to know your mileage and usage of a company car. And using personal email to avoid FOIA requests is like using your personal car instead of your FEDEX truck... of COURSE FEDEX is going to want to know why you're using your car instead of their truck!

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  • identicon
    I.T. Guy, 8 Sep 2016 @ 9:08am

    Dude looks like a serial killer.
    http://www.niemanlab.org/images/yglesias1.jpg

    He may even have ties with terrorism:
    http://cdn.thefederalist.com/wp-content/uploads/2014/05/Matthew-Yglesias-Is-Super-Smart.pn g

    "Screw you FOIA requests:"
    http://cdn.thewire.com/media/img/upload/wire/2013/12/20/matty/lead_large.jpg

    Steve set him straight.

    We need to update his wiki to:
    Occupation Blogger, "journalist"

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    • identicon
      Anonymous Coward, 8 Sep 2016 @ 9:41am

      Re: Screw you FOIA requests:

      "Screw you FOIA requests:"
      http://cdn.thewire.com/media/img/upload/wire/2013/12/20/matty/lead_large.jpg

      Hmmmmm...

      cdn.t hewire.com uses an invalid security certificate. 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  • icon
    ChurchHatesTucker (profile), 8 Sep 2016 @ 9:29am

    Jeebus Tim

    - She deployed her own private email server despite being warned against doing so, and while receiving input from other officials who hinted it might be a good way to route around public record requirements.

    While Powell *advised* her to to route around FOIA, like he did (page 11 of the FBI notes) she obviously did not do that or we wouldn't be hearing about her emails all the damn time.

    Running your own email server is rarely a good idea, but let's not imply motives contrary to her actions.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Sep 2016 @ 3:18pm

      Re: Jeebus Tim

      "While Powell *advised* her to to route around FOIA, like he did (page 11 of the FBI notes) she obviously did not do that or we wouldn't be hearing about her emails all the damn time."

      no it seems the intent was there, the ability to achieve the goal seems to be lacking. The emails we are hearing about now were deleted, just not irretrievable.

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      • icon
        ChurchHatesTucker (profile), 9 Sep 2016 @ 12:27pm

        Re: Re: Jeebus Tim

        no it seems the intent was there, the ability to achieve the goal seems to be lacking. The emails we are hearing about now were deleted, just not irretrievable.

        Facts not in evidence.

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    • identicon
      Anonymous Coward, 8 Sep 2016 @ 8:11pm

      Re: Jeebus Tim

      > let's not imply motives contrary to her actions.

      That seems to be par for the course for hillary. I was opposed to her candidacy for the simple fact that I really, really do not like political dynasties. But when Bernie lost (and he lost big like 12M to her 16M of the popular vote) I had to decide if she was crap or not.

      I figured the endless parade of scandals would give me good reasons to detest her, so I looked into them. In depth. And all I've found is smoke generated by people who are obviously frustrated there is no fire. The craziest is Benghazi -- there have been 9 freaking investigations and they all concluded she did nothing wrong. WTH? There have been man-years of news coverage over nothing? Jesus H Christ!!

      I held a security clearance for more than 10 years so I figured the details on her mishandling of classified documents would be an easy slam-dunk. Nope. Get past all the hysteria and it boils down to two things: (1) A civilian without a clearance sent her unmarked docs they got from somewhere else, probably the CIA; and an aide missed two "(C)" markings during routine declassification of her phone schedule. The former is definitely someone else's fault, sounds like CIA playing games doing strategic leaks and the later is about as minor as it could possibly get - a mismarked unclassified phone schedule. Jesus H. Christ!

      Other "scandals" that I looked into all turned out the same - whitewater, travelgate, filegate, vince foster. In trying to find concrete evidence of her so obvious corruption, I ended up convinced that she's a competent administrator who is simply terrible at the glad-handing that is the bread & butter of most politicians.

      Maybe there are other legit hillary scandals. But after all the really big, flashy scandals failed to pan out, you decide it ain't worth the effort to bother. Boy who cried wolf and all...

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      • icon
        freedomfan (profile), 9 Sep 2016 @ 4:33pm

        Re: Re: Jeebus Tim

        Just to be clear, there is a big difference between A) an investigation finding that Mrs. Clinton did not do anything for which she would likely be convicted if she were prosecuted and B) an investigation showing that "she did nothing wrong". The former is generally where most investigations stop. And rightly so, because it isn't the government's place to put people on trial when it doesn't think it can really prove they did it. But, at the other end of the spectrum from people assuming that an accusation means the accused must have done something wrong, people also need to understand that being unable to prove a criminal act in a court of law is not the same as concluding that nothing slimy happened.

        The FBI's investigation into the email issue is a good example of this. The FBI's conclusion was (roughly) that she did plenty "wrong" but nothing that merited an indictment.

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        • icon
          ChurchHatesTucker (profile), 9 Sep 2016 @ 6:56pm

          Re: Re: Re: Jeebus Tim

          The FBI's conclusion was (roughly) that she did plenty "wrong" but nothing that merited an indictment.

          Comey has backed down on every 'wrong' when pressed (likely because Powell, and indeed the entire Bush team, was FAR more egregious. Hillary actually complied with FOIA.)

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          • identicon
            Anonymous Coward, 11 Sep 2016 @ 4:28am

            Re: Re: Re: Re: Jeebus Tim

            Someone else doing something wrong, even if it was worse is never a valid excuse for bad behavior.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 9:39am

    In support of god knows what

    Oh God knows and everyone else knows what Yglesias is supporting.

    He's supporting the party.

    reply to this | link to this | view in chronology ]

  • icon
    Sean (profile), 8 Sep 2016 @ 9:45am

    The problem with Steve Reilly's argument is that the feds getting records of a phone call require a wire tap. The feds should get the same wire tap (so to speak) to copy a person's emails. If they then make a federal record of having acquired those emails, then perhaps those emails should be subject to the FOIA requests, but not all emails.

    reply to this | link to this | view in chronology ]

    • icon
      nerd bert (profile), 8 Sep 2016 @ 11:10am

      Re:

      So your argument is that the Executive branch needs to be more secretive and less open to Congress and the people of the US? Is that what you're seriously saying? I have a hard time believing that anyone other than a hyper-partisan can make that argument in these days of over-classification of even routine information. The FOIA is one of the very, very few methods by which people can challenge the process of making laws via bureaucratic rule making (a power Congress has been handing the Executive branch for many years now) and I'd rather it not be weakened.

      Clinton's problem is that she took the Secretary of State job as a placeholder while she got ready to run for the Presidency and didn't want to leave a trail of her political activities behind her. She took the path of least resistance and nearly highest risk and incompetence and now she's paying the price.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 9:47am

    What the Clinton Emal scandel teaches...

    Politician's can be provably corrupt as dirt... people still willing to vote for them.

    It is sad that there are people willing to vote for that corruption while simultaneously talking smack about others. If you support Hillary you are directly making the statement that corruption in government is welcome to be there.

    Every Nation get the Government it Deserves!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Sep 2016 @ 10:41am

      Re: What the Clinton Emal scandel teaches...

      And if you support Trump you are supporting a Putin wannabe.

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 8 Sep 2016 @ 11:36am

        Re: Re: What the Clinton Emal scandel teaches...

        Well, sure! Given that Jeb!, plus Scott Walker, Marco Rubio, Chris Christie, Rick Perry and Bobby Jindal all have their own similar email scandals, plus Mitt Romney and Secretaries of State Colin Powell and Condoleezza Rice and the entire Bush II administration.... Trump as a Putin sock puppet would be the only one left untainted by email scandals AND with government experience.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Sep 2016 @ 2:52pm

          Re: Re: Re: What the Clinton Emal scandel teaches...

          No fan of Trump, but right now, there is no provable government corruption that I am aware of... just provable stupidity.

          Corruption must always be shat out by the citizens. If you do not then all we will ever have is a choice between a Hillary or Trump.

          The political choices of late make it clear that America is too busy shitting the bed to notice the stench.

          reply to this | link to this | view in chronology ]

          • icon
            Roger Strong (profile), 8 Sep 2016 @ 9:46pm

            Re: Re: Re: Re: What the Clinton Emal scandel teaches...

            > No fan of Trump, but right now, there is no provable government corruption that I am aware of... just provable stupidity.

            Given that he hasn't been in government, it would be equally valid to note that Hillary has no provable Presidential corruption or stupidity.

            One can only go by their record outside the job. It isn't pretty for either of them, but Hillary has nothing to match outright scams like Trump University.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 9:53am

    When we speak of media bias, this is what we mean.

    reply to this | link to this | view in chronology ]

  • icon
    nerd bert (profile), 8 Sep 2016 @ 11:30am

    The definition of journalist?

    It is only in recent history that we started applying the title of "journalist" to someone who attempted to report events honestly and without bias. Matt Yglesias is clearly a "journalist" in the "yellow journalism" tradition: he's a naked partisan who at best makes inadequate and awkward attempts at balance and has been since the beginning of his career.

    And if you think I'm condemning him for his nakedly partisan writings, you're wrong. I'm only condemning those who attempt to beguile the unsuspecting by claiming that he's a "journalist" in the modern definition of an unbiased reporter of facts. I'm actually much more comfortable when a journalist is quite open about his partisan leanings and philosophy so that I know how much work I have to go to before I should believe their arguments or facts. In Matt's case, I've seen far too many arguments like this for me to give most anything he says much weight. And for the record, Hannity falls in the same catagory. They simply aren't credible as unbiased and accountable.

    reply to this | link to this | view in chronology ]

    • identicon
      btr1701, 8 Sep 2016 @ 8:59pm

      Re: The definition of journalist?

      > And for the record, Hannity falls in the same catagory.

      Hannity is not a journalist. He's a political commentator, and he's never claimed to be otherwise.

      reply to this | link to this | view in chronology ]

  • icon
    DudeAbiding (profile), 8 Sep 2016 @ 11:48am

    Clinton apologists

    If it hasn't already become obvious, for "Journolists" in the tank for Hillary and other Democrats, no bald-faced lie is too great, no fabrication too bold and no shame too great to sustain in their desire to wallow in the Democratic party cesspool.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 12:05pm

    1. His belief that nearly anything critical of Hillary Clinton is overblown.

    This actually crystallizes something for me: Donald Trump is being called a 'threat to democracy.' ISIS has been variously referred to as 'an existential threat to America.'

    Ironically, these people are right, but for the exact opposite reason: On the scale of the whole world and the long view of history, Trump and ISIS are noisy annoyances, not dangerous in themselves.

    What is a threat, though, is the short-sighted reactions they provoke. People who should know better panic and overreact, discarding principles, ideas, even Constitutional guarantees to 'fight' the 'threat'. That creates the threat to democracy and, eventually, destroys the America most people envision. Burning down the house to kill some ants.

    reply to this | link to this | view in chronology ]

  • identicon
    Brad Clarkston, 8 Sep 2016 @ 12:54pm

    Your being way to generous calling anyone from Vox a "journalist".

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 4:55pm

    Maybe Someone Will Get the Reference

    "Different communications have different FOIA standards and that's OK"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Sep 2016 @ 7:43pm

    Could Have Been Better

    > Yglesias says there's "no public interest" in documents
    > that don't contain official policy directives, etc.

    Huh? I just did a text-search through that article and the phrase "no public interest" does not occur once.

    I think you are mischaracterizing his argument in the general and the fact that you fake-quote him in the specific makes me even less trusting of your analysis.

    Maybe that is how you genuinely see the issue, or maybe you are deliberately missing the point to argue against strawmen rather than add to an analysis of complex issues. If I want lowest-common-denominator rants I can get that in the comments section.

    What I do know is that the press has nearly uniformly failed to report on issues during the election despite tons and tons of source material, FOIA and otherwise.

    Instead it is almost all "reporting the controversy" because its easy to say two sides are in disagreement. But that's a false balance and reporting on the quality of the disagreement usually gets you dismissed as a shill because most times one side is wrong and one side is right. When politics is just a team sport any calls that go against your team mean the ref must be corrupt.

    reply to this | link to this | view in chronology ]

    • icon
      freedomfan (profile), 9 Sep 2016 @ 4:54pm

      Re: Could Have Been Better

      > Yglesias says there's "no public interest" in documents
      > that don't contain official policy directives, etc.

      Huh? I just did a text-search through that article and the phrase "no public interest" does not occur once.

      I think you are mischaracterizing his argument in the general and the fact that you fake-quote him in the specific makes me even less trusting of your analysis.

      I agree with much of what you say later, but the above is somewhat nit-picking. Yglesias may not have put "no" and "public interest" together in that exact way, but Cushing's read of Yglesias' article is hardly unfair. He shouldn't have put the phrase in quotes, but it isn't a mischaracterization.

      For example, Yglesias says,
      Treating email as public by default rather than private like phone calls does not serve the public interest.
      and
      But while the press and the public are unquestionably interested in this stuff, it is fundamentally not in the public interest to routinely know about them

      And Yglesias goes on to say largely what Cushing says that he said.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Sep 2016 @ 4:52am

    VOX Media are so far into Clintons rabbit hole this should not be surprising. I guarantee their tune on this stuff will change once their is a republican administration again. Can you imagine him writing this piece during any of the scandals from the Bush years? Right...

    reply to this | link to this | view in chronology ]

  • identicon
    Will G-R, 9 Sep 2016 @ 2:36pm

    Constitutional Convention of 1787

    My favorite bit from Yglesias is when he brings up the negotiations around the US Constitution and compares this to the behavior of present-day political leaders, as if invoking the nationalist mythology of the Oh So Wise And Infallible Founding Fathers will bury his readers' worries under a heap of patriotism. It seems uncontroversial to assume that the single most haggled-over issue at the Constitutional convention would have been slavery, which is the issue around which we see a number of seemingly arbitrary planks including the notorious "three-fifths compromise" (which had nothing to do with individual slaves being worth three-fifths of a person but with Southern states receiving Congressional representation in proportion to their populations of slaves, each of whom were still legally treated as zero-fifths of a person... imagine I hid a bunch of murdered bodies in my car and tried to claim each of them as three-fifths of a living person when I want to drive in the carpool lane) along with the plank allowing the federal government to prohibit the international slave trade but only after 1808. It also seems uncontroversial to characterize the overall output of this Constitutional haggling over slavery as a massive case of kicking the can down the road, one that helped lead directly to the Civil War.

    And in any case, apart from the role played in our jingoistic American creation myth by idea of the Constitution as some kind of miraculous super-document, the actual text of the Constitution is generally quite uninspiring and unremarkable, and if any part of the Constitution get treated as inspirational for what it actually says, it's generally one of post-facto amendments that were passed through public legislative sessions. So basically none of this should have the "...yes, Virginia, that's why government secrecy is good for you!" effect Yglesias seems to think it should.

    reply to this | link to this | view in chronology ]

  • icon
    Gene Cavanaugh (profile), 9 Sep 2016 @ 4:10pm

    I am deeply disappointed in TechDirt

    For some time now, I have held up TechDirt as a model of independent reporting. No more!
    Adding anonymous sources making up numbers (Tea Party numbers?) for the "confidential email" fantasy is VERY disappointing!
    Comey, in a meeting with a Congressional Committee said there were THREE emails with a (C) marking in the body - a mark that Comey incorrectly interpreted as "confidential" (it means "copyright", in case anyone is wondering), and added that there was no "there, there" for a prosecution (and Comey is a long-time dedicated Republican!).
    Building bullshit on top of bullshit is causing a lot of people to switch to Hillary, but for TechDirt to add to the pile is REALLY depressing!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2016 @ 4:21am

    2016

    Hillary Clinton supporters much like Trump supporters have to go to torturous lengths to protect and promote the candidate of choice. Perhaps the solution could be simplified by having candidates that don't need help to look decent and viable.

    reply to this | link to this | view in chronology ]

  • identicon
    Annonymous Coward, 15 Sep 2016 @ 3:33am

    Awesome website! I realy enjoy being here!

    reply to this | link to this | view in chronology ]


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