Knight Institute Warns Rep. Ocasio-Cortez That She, Like Trump, Can't Block People On Twitter

from the as-noted dept

Earlier this summer, we wrote about the 2nd Circuit appeals court affirming a district court ruling against Donald Trump, saying that it's a 1st Amendment violation for him to block followers on Twitter. The reasoning in the decisions was a bit nuanced, but the short version is that (1) if you're a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express. The four conditions do need to be met -- and the lower court at least noted that such public officials can still "mute" people. That is, the officials don't need to listen -- but they cannot limit access to the narrow public space that is created in response to their official social media posts.

Right after that ruling came down, we pointed out that someone had already sued Rep. Alexandria Ocasio-Cortez for blocking people on Twitter as well, and our analysis was that she certainly seemed to be violating the 1st Amendment in the same way as Trump was. Now, the Knight 1st Amendment Institute, which filed the initial lawsuit against Trump, has sent a letter to Ocasio-Cortez making the same point. This is interesting, because when the original lawsuit against AOC was filed, and the media requested comment from the Knight Institute, there was at least some hesitation, saying that they needed to look at all of the details. Now that the details have been explored, it appears that the Knight Institute has come to the same conclusion.

As the letter makes clear, the @AOC account meets all the criteria that the court required to say that blocking is not allowed. Apparently Ocasio-Cortez is trying to argue that the @AOC account is a personal account, and she had another more official account. But, as the Knight letter explains, that's not at all accurate:

Based on the facts as we understand them, the @AOC account is a “public forum” within the meaning of the First Amendment. You use the account as an extension of your office—to share information about congressional hearings, to explain policy proposals, to advocate legislation, and to solicit public comment about issues relating to government. Recently, for example, you used the account to discuss new “policy approaches we should consider wrt immigration,” and to ask the public, “[w]hat commissions would you want to see Congress establish?” The account is a digital forum in which you share your thoughts and decisions as a member of Congress, and in which members of the public directly engage with you and with one another about matters of public policy. Since you first took office, the number of users following the @AOC account has reached more than 5.2 million. Many of your tweets staking out positions on issues such as immigration, the environment, and impeachment have made headline news. The @AOC account is important to you as a legislator, to your constituents, and to others who seek to understand and influence your legislative decisions and priorities.

Multiple courts have held that public officials’ social media accounts constitute public forums when they are used in the way that you use the @AOC account, and they have made clear that public officials violate the First Amendment when they block users from these forums on the basis of viewpoint. Most relevant here, the U.S. Court of Appeals for the Second Circuit recently concluded that President Trump violated the First Amendment by blocking users from his Twitter account, @real- DonaldTrump, because “he disagree[d] with their speech.” In another recent case, the Fourth Circuit held that the chairperson of a local county board violated the First Amendment by blocking an individual from her Facebook page.

In pending litigation, your attorneys have argued that the @AOC account is not subject to the First Amendment because it is a personal account. As we have explained above, that characterization is incorrect. Further, while we understand that you have another account that is nominally your “official” one, the fact remains that you use the @AOC account as an extension of your office. Notably, the Second Circuit rejected President Trump’s argument that his account is a personal one even though he has other accounts—@POTUS and @WhiteHouse—that are nominally official. The Court wrote, “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

So far, AOC responded to this by saying that she's only blocking 20 accounts and that she's blocking them for "harassment," rather than viewpoint discrimination.

But, again, as the lower court said in the Trump case, the remedy there should be "muting," not blocking. I get that being a public figure on Twitter is not always fun -- and especially for polarizing political figures (which both Trump and Ocasio-Cortez undoubtedly are). And I get that it must suck to have assholes clog up your feed. I'm barely known and, while I use Twitter's block button sparingly, I have found it useful at times. But I'm not a publicly elected official using my account for official business as an elected politician. The fact that one of the accounts AOC is blocking is a media outlet, even one as ridiculous as The Daily Caller, only highlights the 1st Amendment concerns here.

I've seen some people supporting the case against Trump, but not supporting it against AOC (and I've also seen the reverse). In most cases, though, those opinions seem to be driven mainly by whether or not one feels politically aligned with one or the other politician. And, while I have seen some good faith arguments that "harassment" should be considered something different, there is a very slippery slope there. Put that into Trump's hands and he'll just as quickly claim that everyone who is criticizing him is "harassing" him as well. We have a 1st Amendment for a reason, and politicians on both sides of the traditional aisle should respect that.

Filed Under: 1st amendment, alexandria ocasio-cortez, donald trump, free speech, harassment, public officials, public spaces
Companies: knight institute


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  • icon
    That One Guy (profile), 3 Sep 2019 @ 10:44am

    This really isn't a difficult concept to grasp...

    If you work in the government and use your social media/email account for official business/announcements/statements then it is no longer a private account, and you are now bound by the same rules as the government in how you interact with people on it, even if you also use it for personal stuff.

    Don't like that? Stop using it for official business.

    Along those lines, just because you have to let people speak on the affected accounts doesn't mean you have to listen to them. Social media has a mute function, use it. If people really are being pests and posting harassing/TOS violating comments then odds are good other people will be happy to report them for it and they'll find themselves either behaving or getting the boot, all without first amendment concerns cropping up.

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

    • identicon
      urza9814, 3 Sep 2019 @ 12:14pm

      Re: This really isn't a difficult concept to grasp...

      My immediate question though was precisely how reporting a comment would fit into all of this. If AOC personally reported the offending comments, would that be any different legally speaking compared to just blocking them? Either way her end goal would be the same...

      I also have to wonder, considering that I've personally been booted out of press events by politicians, why is it OK to block someone from a room physically but not OK to block them on Twitter? That feels a bit odd...

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

      • icon
        Stephen T. Stone (profile), 3 Sep 2019 @ 12:18pm

        If AOC personally reported the offending comments, would that be any different legally speaking compared to just blocking them?

        Reporting a tweet is no guarantee that Twitter will take action. Buuuuuuuuuut if Twitter boots a user based on a report from a government official (e.g., Ocasio-Cortez), even if the user violated the TOS, that could present a tricky legal situation as to whether such a ban constitutes government interference of legal speech. (Unless a precedent that I am unaware of already exists for this situation.)

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

        • icon
          James Burkhardt (profile), 3 Sep 2019 @ 1:22pm

          Re:

          I don't expect a ban to come from any one incident or a ban-able offence to be reported by only one individual. So long as the report of AOC had no special weight, the court could apply a principle I call the no-single-event principle - it isn't that the government reported the action, but the multitude of actions and the multitude of reports, so the action can't be said to be the action of the government, but a response by twitter to public reports which may contain reports made by an individual who is a government official.

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

      • identicon
        Anonymous Coward, 3 Sep 2019 @ 4:35pm

        On your first point, the difference is that if AOC blocks an account, her actions have directly impacted the account holder's ability to speak freely to her.

        If AOC reports an account to Twitter, nothing prevents that account holder from speaking freely to her. Their speech will not be affected until and unless Twitter takes action.

        And linking it to the second point: not only do the First Amendment restrictions not apply to Twitter, but if the primary reason for someone being silenced is anything other than disagreeing with spoken/written ideas, the First Amendment does not protect the speaker. If they have broken a rule or policy which has a basis in anything other than mere ideology alone, and is enforced fairly regardless of expressed ideology, then they can be removed. It could be a dress code, it could be a lack of credentials, it could be disruptive behavior, it could be a safety issue (such as overcrowding).

        It's also important to note that not every place where a politician speaks is a public forum that must be accessible to everyone. They can restrict access however they like to many events, as long as speech or ideology are not one of the restrictions. If a politician is giving a speech for the West Maryland Firefighter Invitational Poker Tournament, and you didn't have an invitation, you can't demand your presence.

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

        • icon
          btr1701 (profile), 11 Sep 2019 @ 2:13pm

          Re:

          If a politician is giving a speech for the West Maryland Firefighter Invitational Poker Tournament, and you didn't have an invitation, you can't demand your presence.

          And if the politician is giving that speech on private property-- a hotel ballroom, for example-- and the hotel staff kicks a disruptive person out, it's perfectly legal, even if they're kicking the person out based on their views and ideology. It's their property. Just like Facebook, they get to decide who's allowed in and who isn't and the 1st Amendment doesn't apply to them. The presence of a politician giving a speech doesn't strip them of their property rights.

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

      • icon
        PaulT (profile), 4 Sep 2019 @ 2:32am

        Re: Re: This really isn't a difficult concept to grasp...

        "If AOC personally reported the offending comments, would that be any different legally speaking compared to just blocking them?"

        I'd say the layer of abstraction is important. AOC doesn't have any actual sway over Twitter, so she's just informing them of something as a customer. If Twitter decides to take action based on the information, that's up to them rather than being an order from AOC.

        To use a typically flawed physical analogy - it's the difference between saying to a security guard at her office building "that guy looks suspicious" and saying "I want that guy kicked out now". One is giving information to allow the guard to make his own decision, the latter is telling them what to do.

        "I've personally been booted out of press events by politicians, why is it OK to block someone from a room physically but not OK to block them on Twitter?"

        Were you kicked permanently out of the room, never allowed to return or have any contact with thee people who were leading that press event in the future? Or just kicked out on that occasion? That's the difference - blocking someone on Twitter is telling them you can never attempt contact with them at that venue.

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

    • identicon
      Anonymous Coward, 3 Sep 2019 @ 12:41pm

      Re: This really isn't a difficult concept to grasp...

      Don't like that? Stop using it for official business.

      Unfortunately, it doesn't work that way. If you start using a Twitter handle to conduct official business, it is now "tainted" -- if you still want to use Twitter for unofficial business, you have to use a new handle, as that other handle has to be preserved for the record, so that in the future people can still respond to your official tweets.

      Where this gets tricky is with shared twitter accounts. Say you were in property development and had a company twitter account like @AnonProperties and then got elected to office. If you start posting stuff related to your platform or decisions in office on @AnonProperties, that is now a public forum. This means that the company now has to go find a new Twitter handle.

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

      • identicon
        Anonymous Coward, 3 Sep 2019 @ 4:25pm

        Re: Re: This really isn't a difficult concept to grasp...

        The simple solution is to not co-mingle the accounts in the first place.

        If you want to run for office create/use an official account rather than your personal one.

        Want to gossip about the latest trends use your own account not the company one.

        It's not like this is a new thing brought about by Twitter (well Twitter just makes it public) most companies for decades have forbidden the use of company email/phone/post for personal reasons.

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

        • identicon
          urza9814, 4 Sep 2019 @ 6:16am

          Re: Re: Re: This really isn't a difficult concept to grasp...

          "It's not like this is a new thing brought about by Twitter (well Twitter just makes it public) most companies for decades have forbidden the use of company email/phone/post for personal reasons."

          It kind of is new actually and certainly runs against the normal expectations -- you can't use business devices for personal reasons, but most companies DON'T prohibit you from using personal devices for business reasons. In fact, many pretty much require it -- I'm expected to be available on call, and I'm expected to let them use my personal cellphone for that, and if I get a call I'm expected to have my own personal internet connection which I can use to login. AOC's Twitter isn't an account that was created by the government for her office; this is an account that she had and used personally before she got elected. This is a bit like if your personal cellphone suddenly became company property just because you answered a call from your manager.

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

  • icon
    Anonymous Anonymous Coward (profile), 3 Sep 2019 @ 11:25am

    Public and Personal

    Politician has two accounts. One personal and one public. Both addresses become known. The thing to do is when someone uses the personal account for public reasons, they should be given the address to the public account and admonished to use it for public comments.

    At the same time the politician should be able to discern when they themselves are making a public comment vs a private comment. This could be hard as when is what a politician does ever private? The answer could be, when in office, stop using the private account, unless with good friends or family, and then don't discuss politics or any public activities.

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

    • identicon
      Anonymous Coward, 3 Sep 2019 @ 2:21pm

      Re: Public and Personal

      Your solution isnthe correct one except for one tiny detail....

      The rules were only meant to be enforced on other people, not the chosen few.

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

      • icon
        Anonymous Anonymous Coward (profile), 3 Sep 2019 @ 2:57pm

        Re: Re: Public and Personal

        It is probably more like many of the chosen few lack impulse control, otherwise they wouldn't be doing something because something must be done, even if that something isn't anything.

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

  • identicon
    Anonymous Coward, 3 Sep 2019 @ 1:25pm

    The distinction for me is the constituency part. I don't expect a representative from another state to listen to me since they don't represent me. Trump represents all Americans (nominally) as president. AOC only represents a small area of NYC.

    Plus, you can lose particular 1st Amendment rights through due process, such as the freedom to harass a person, but if there is no due process in the medium (Twitter arbitrarily banning people is not government due process), then it's a bit of a wild west scenario where there are no rules. Unless you expect politicians to issue restraining orders against every single person who harasses them online (which isn't practical), it seems like the politician should be able to block (functionally the same as muting in this case) harassers and then the citizen can appeal if the block was unjustified.

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

    • icon
      That One Guy (profile), 3 Sep 2019 @ 2:09pm

      Re:

      Unless you expect politicians to issue restraining orders against every single person who harasses them online (which isn't practical), it seems like the politician should be able to block (functionally the same as muting in this case) harassers and then the citizen can appeal if the block was unjustified.

      As I understand it the two are not functionally the same though, hence the problem and why the court noted in Trump's case that while blocking wasn't allowed muting would have been.

      While I don't use the platforms and as such might be off on some details, from what I've gathered via articles like this blocking keeps an individual from being able to post on the account that blocked them, such that no-one can read what they posted because it wasn't allowed in the first place, whereas mute merely prevents that person's comments/posts from being visible to the person who muted them, though they are still visible to everyone else who hasn't likewise muted them.

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

    • icon
      James Burkhardt (profile), 3 Sep 2019 @ 2:13pm

      Re:

      Muting solves all the issues of harassment you highlight as a reason to ban an individual.

      The only issue I see is the potential for someone restrained by a geniune restraining order being able to stalk an individual, but that in and of itself does not violate the restraining order. Issues of cyber contact not resolved by the restraining order are handled by application of the mute button, and violations of the restraining order are handled by the police.

      Restriction of 1st amendment rights by the government requires due process, restriction of speech by private platforms or individuals does not require due process.

      Application of the mute feature as you admit is just as functional as the block function to hide crude and harassing individuals. But from the perspective of those muted, there is a very different result between mute and block, and the court has ruled that for a public official using twitter as an official communications channel, Mute is the correct choice, not block. Nothing you have said here serves to address those rulings. Your own words prove the futility of those words.

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

    • icon
      Leigh Beadon (profile), 3 Sep 2019 @ 2:22pm

      Re:

      The distinction for me is the constituency part. I don't expect a representative from another state to listen to me since they don't represent me.

      A lot of people have been focusing on that distinction but as far as I know it has no basis in law and, honestly, seems like a really dangerous and limiting direction to go with the first amendment. It is the right of The People to petition The Government, not just the right of constituents to petition their representatives.

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

      • icon
        K`Tetch (profile), 3 Sep 2019 @ 3:31pm

        Re: Re:

        thats just it though, you can petition the government in various ways

        1) through a wide public forum (eg the news, or a public petition sent to a body as a whole)
        2) through contact with an appropriate office (such as majority leader of the senate for concerns that fall in that job's purview)
        3) via your elected representatives (that is why they're elected, to represent you and your views to the government as a whole)

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

        • icon
          Leigh Beadon (profile), 3 Sep 2019 @ 7:25pm

          Re: Re: Re:

          And the first amendment protects all of those ways - as well as your right to petition other legislators, even if they are not your representatives.

          I am just not seeing (a) why anyone thinks this is not the case legally and (b) why anyone thinks it would be a good idea to change it.

          If a congressperson you dislike proposes national legislation that you oppose, but they are not your representative, are you saying you would have no first amendment right to protest or petition them?

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

      • icon
        sumgai (profile), 4 Sep 2019 @ 2:58pm

        Re: Re:

        Leigh,

        Indeed. AOC appears to have forgotten that she was elected by some New Yorkers to help formulate laws in accordance and agreement with other elected representatives from outside of New York. Preferably to the betterment of all of the country, and not just to New Yorkers (or some portion thereof).

        Long story short, if I can't communicate with all of those officials who hold sway over the laws that govern my actions, then I'm not being represented in accordance with the Constitution.

        But I do agree that harassment sucks, and Muting is not the answer there, either. Just because you can't see it, that doesn't mean that others can't see it. And if it's both really bad and persuasive, the account holder shouldn't have to be defending themselves to "non-Muters" who've read the trash. Blocking is the proper answer, regardless of how "thick of a skin" an official should have. I regard such action as akin to a parent giving his/her kid a swat on the butt, that they might learn some civility in their discourse with the rest of society. (But keep copies of those harassing statements. Threats to harm or even to kill, those are definitely in the realm of non-tolerable harassment, and I don't see the 1st Amendment giving anyone a right to utter such.)

        No one is suggesting that you don't have the right to offend, and that others must take your offensive statements. What we're saying is that if you can't stand the retalitory measures in response to your offenses, then don't commit them in the first place. (Baretta comes to mind - "If you can't do the time, don't do the crime".)

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

    • icon
      PaulT (profile), 4 Sep 2019 @ 2:36am

      Re:

      "The distinction for me is the constituency part"

      It's also the actual usage. Trump doesn't just discuss things via his personal account, he has actually made policy and staffing announcements there, sometimes before his staff are even aware of the decision.

      "it seems like the politician should be able to block (functionally the same as muting in this case) harasser"

      Harassers, yes. The problem is that some of these people (especially Trump) also block people who simply disagree with them without such behaviour.

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

    • icon
      btr1701 (profile), 11 Sep 2019 @ 2:29pm

      Re:

      The distinction for me is the constituency part. I don't expect a representative from another state to listen to me since they don't represent me.

      Since every member of Congress has a hand in passing legislation and policies that affect everyone nationwide, we all have a right to express our views to all of them, collectively or individually.

      To say the 1st Amendment applies only to your own member(s) of Congress is a non-starter. The government is the government and I have a right to redress any government official with my grievances.

      To rule otherwise would be equivalent to saying a guy from California has no 1st Amendment right to picket outside the governor's mansion in Texas because the government of Texas doesn't represent him.

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

  • identicon
    David, 3 Sep 2019 @ 1:48pm

    There is a saying:

    What's bad for the peacock is bad for the goose.

    Something like that.

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

  • icon
    Tribune (profile), 3 Sep 2019 @ 5:05pm

    muting does NOT achieve the same result

    I've modified my views on this.

    (1) The 'constituency' argument seems salient.
    (2) Muting -- instead of blocking -- still allows trolls to piggyback @AOC's account, displaying such things 'fake nude photos' to actual constituents.

    I don't offer any solution, but I do admire the problem.

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

    • icon
      Stephen T. Stone (profile), 3 Sep 2019 @ 5:43pm

      Muting -- instead of blocking -- still allows trolls to piggyback @AOC's account

      This is the primary issue with muting over blocking. From what I’ve heard, however, Twitter is supposedly experimenting with “reply blocking” functionality that would let a user block specific replies from being displayed underneath their tweets.

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

    • icon
      Leigh Beadon (profile), 3 Sep 2019 @ 7:21pm

      Re: muting does NOT achieve the same result

      The 'constituency' argument seems salient.

      It might at first glance but... why? What in the letter of the first amendment, or the judicial history of interpreting it, leads you to think that?

      Congresspeople propose and vote on laws that impact the entire country.

      Consider this - what if a couple high-profile congresspeople cosponsor a new bill with sweeping consequences that you deeply disagree with. Perhaps you are even a member of a national advocacy network that opposes the bill on strong moral, ethical, legal etc. principles. You decide to join a group of people who are traveling to the district of one of those congresspeople, where they are holding a public town hall to answer questions about the bill.

      At the door, security asks you for proof that you live in the district. When they determine that you do not, they deny you admission to the event. You decide to join a group of protesters outside, and the congressperson's staff calls the police, and asks the police to remove every protester who is not a constituent of the congressperson. Doesn't matter if you are protesting peacefully or in designated zones or anything - you are not represented by this congressperson, so you have no constitutional right to be there. The police remove you, and all other non-locals in your group.

      Would you feel your First Amendment rights had been violated? I sure would.

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

  • identicon
    Anonymous Coward, 4 Sep 2019 @ 4:44am

    There's disagreeing with people, and then there's harassment.

    If true about her comments that people were just posting faked nude photos of her and just personally attacking her because of her race/gender I personally don't see a problem with that. And given the low number of banned accounts reported that seems quite reasonable. Doesn't even seem like the harassers are trying that hard since it's rather trivial to create a new account.

    Trump was banning people disagreeing with his politics by and large. I fucking hate Trump lets just get that out of the way here... But if someone was posting up fake (or real) nude photos of him on twitter I wouldn't have any problem with him blocking this person as this isn't disagreeing with him. That's just personal attacks.

    I really don't get why people call this a double standard. If someone was yelling at Obama "Your approved drone strikes are killing children!" at a rally and he was removed that might sit uneasy with me.

    But if this same person was just yelling the N-word over and over and over again and this person was removed from the room with Obama that would seem rather reasonable since this has nothing to do with his policies and all about personal attacks.

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

  • icon
    Christopher (profile), 4 Sep 2019 @ 5:15am

    So what if it's a slippery slope..?

    "2. Harassment is not a viewpoint. Some accounts, like the Daily Caller, posted fake nude photos of me & abused my comments to spread it. No one is entitled to abuse. https://t.co/0QWKqJFzRe" Figure it out. Harassment is a real problem, and shouldn't be tolerated. Throwing the "slippery slope" flag on it is a punt, a weak counter to the real point here. Weak. -C

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

  • identicon
    Anonymous Coward, 4 Sep 2019 @ 7:27am

    somebody come get her...
    she's actin' up on twitter...

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

  • identicon
    Anonymous Coward, 4 Sep 2019 @ 8:27am

    If this ruling is good enough for Trump, then the same holds true for AOL. Personally, I don't see how the court ruled this way in the first place. This is a PRIVATE company. So Twitter can just go and block anyone they want for AOC all the white letting all the hate groups continue for Trump. Since Twitter is just another Leftist company or course that will be what they do. It's just a little harder for AOC to get Twitter to boot people off, even though she officially didn't block them.

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

    • icon
      PaulT (profile), 4 Sep 2019 @ 8:34am

      Re:

      "If this ruling is good enough for Trump, then the same holds true for AOL"

      Yeah, people dumb enough to rant about "leftists" are usually uninformed and behind the times enough to use AOL.

      "letting all the hate groups continue for Trump"

      What's funny is that you don't realise that it was Trump promoting hate groups that got them banned in the first place. His support of white supremacists is why people like you are getting barred everywhere else.

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

    • icon
      nasch (profile), 4 Sep 2019 @ 9:01am

      Re:

      Personally, I don't see how the court ruled this way in the first place. This is a PRIVATE company. So Twitter can just go and block anyone they want

      Yes, Twitter can block anyone they want for any reason. Trump and O-C cannot. Did you catch the part about the first amendment, and how it applies to government officials but not private companies?

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

      • icon
        PaulT (profile), 5 Sep 2019 @ 12:17am

        Re: Re:

        Exactly. It's not Twitter doing the blocking, it's a public servant. That changes the rules, even if they've chosen private property as their platform.

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

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