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Order temporarily blocks Feds from targeting press, legal observers in Portland (npr.org)
72 points by coronadisaster 4 months ago | hide | past | favorite | 105 comments

An interesting point that this article does not mention, but which can be found in other articles [2] or the order [2]:

The judge issuing the order specifically stated that this court has reviewed and ruled on the the order so it is clearly established that it is legal and thus qualified immunity does not apply.

I had not previously seen that technique for (potentially?) avoiding qualified immunity.

[1] https://www.oregonlive.com/portland/2020/07/judge-inclined-t...

[2] https://aclu-or.org/sites/default/files/field_documents/aclu...

Similar function to a consent judgment[1]. Remedies can include citation for contempt, continuing supervision .

[1] https://www.lexisnexis.com/lexis-practice-advisor/the-journa...

> U.S. District Judge Michael Simon issued a restraining order Thursday preventing federal agents from "arresting, threatening to arrest, or using physical force" directed at anyone they know to be a journalist or legal observer, unless they have probable cause to believe they have committed a crime.

> The order also blocks the defendants from seizing any photographic, audio and video recording equipment and press passes from people in those two categories, as well as from ordering them to stop recording or observing a protest.

Why is this not within the already defined rights of all Americans? I fail to see why journalists would need a special use case.

Another poster mentioned that this order negates claims of qualified immunity. You're correct, this is already a protected right; I believe the order makes it so no officer can claim they made some kind of reasonable mistake and thus can't be held personally liable.

Police (and some journalists themselves) would love to see 1A limited to journalists and 2A limited to racist rednecks (...and, one supposes, 3A limited to families without pretty teenage daughters). The more the population can be divided, the better, for authoritarians.

sorry, what are 1A, 2A and 3A?

Ahhh... I think I was just on the wrong track, I was looking at the parent comment trying to place a 1a), 1b), 2a) ordering onto the points they made and getting confused.


I've lived in the US my entire life, and I was confused by your abbreviations. I don't know what "TFA" means, either.

"The Fine Article". Many people who are interested in civil rights refer to the amendments in this abbreviated fashion... It's fun to learn new things!

It is! Nevertheless, I was confused at first. I’m sure I would’ve figured it out eventually, given the context.

The first through third amendments to the US constitution.

If you're unaware the 1st amendment generally deals with the right to free speech, the 2nd is the ever controversial right to bear arms, and the 3rd is often mocked as obsolete, but has to do with disallowing the forced quartering of soldiers in people's homes.

> ...preventing federal agents from "arresting, threatening to arrest, or using physical force" directed at anyone they know to be a journalist or legal observer, unless they have probable cause to believe they have committed a crime.

Is that not the case already?


Along with:

>The order also blocks the defendants from seizing any photographic, audio and video recording equipment and press passes from people in those two categories, as well as from ordering them to stop recording or observing a protest.

I feel like I'm living in Bizarro World. You have to actually have committed a crime in order to be legitimately arrested? Police can't just take your lawful property? Police can't order citizens to "not observe" what is happening? We needed a restraining order to acknowledge this?

All “police reform” measures I’ve seen simply codify things cops would be doing already if their culture and systems weren’t completely irredeemable. It’s nothing more than a tactic to distract and fragment consensus.

In the United States, much like in similar authoritarian countries, the police appears to be able to arrest journalists without probable cause. Happened live where journalists reporting live have been arrested and / or beaten. A sad state of affairs.

> the police appears to be able to arrest journalists without probable cause. Happened live

I haven't seen any stories/vids where they arrested journalists without probable cause in the US recently. Would you happen to have any links to share?

Thanks. I know the CNN crew were definitely arrested for cause, but I hadn't heard about the Australian crew. Although, I'll have to do more research on that one, because the link doesn't really give much context as to why they were confronted in the first place.

What was the cause? They were taking pictures too disruptively?

I can't believe I've been forced to defend CNN...

I can't believe I've been forced to defend CNN.

I can't believe I'm agreeing with your defense of CNN. We really are living in Bizarro World right now. Some people in the US have gone way too far down the authoritarian path.

They were told to move out of that specific area

So what? Unlawful orders are unlawful. The reporter and camera operator were not obstructing anything. They were in a position to observe, which is what the public wants them to do. Police will disagree, but police have lied so much that no one believes them anymore.

Why is it assumed the order is unlawful?

I didn't assume anything. I told you why it was unlawful, in the comment directly above.

They are also macing and beating journos solely for lawfully filming cops. Makes it kind of hard to do the job even they don't arrest you. See topic article.

While you're at it: https://www.google.com/search?source=hp&ei=G_caX_qVB_HI0PEPv...

Yeah, but these aren’t police, they’re feds who are deployed within the scope of codified law. This reads like judicial activism, nothing more.

The judge is noting that there are competing concerns at play here (as is often the case) and clarifying for participants the priority of those concerns.

Specifically, the statutes that authorize these policing actions are inferior to the constitutional guarantees in this case given the situation on the ground.

I think you've got it wrong. The rights as defined in the Bill of Rights apply more strictly to the federal government than they do to the states. In fact, it took the Fourteenth Amendment and over a hundred years of judicial interpretation to "incorporate" a subset of the Bill of Rights to apply to state governments.

Their only identification is a little patch which reads “POLICE”. You’re saying that’s fraudulent?

> they know to be a journalist or legal observer

When the standard is "know", it actually becomes quite hard to prove a violation. It isn't enough just to demonstrate that the fact is true, you also have to prove that the person who committed the violation subjectively knew it was true.

The text of the order says "reasonably should know". That means even if an individual federal agent didn't know, they can still violate the order if they reasonably should have known. But, what an individual agent reasonably should have known is itself a quite difficult question that can produce a lot of legal argument.

What if a federal agent is told by their superiors that "violent protestors are falsely pretending to be journalists/legal observers to take advantage of this order"? Even if the statement is false, so long as the agent trusts their superiors and genuinely believes it is true, they would fail to meet the "know" standard. (Knowledge is justified true belief, and if you don't believe it, you can't know it.)

Of course, maybe in such a case they "reasonably should have known" that what their superiors said is false. But how are they supposed to know that, and is it reasonable to expect them to know that?

Putting that aside, I think the US government is going to want to appeal. And if it makes it to the Supreme Court, whose side is the conservative majority going to favour?

The order applies to the superiors issuing commands too, and spells out explicit forms of identifying marks for covered people.

The reality is Border Patrol agents were purposefully shooting members of the press with rubber bullets and seizing their equipment regardless of their rights.

Just because there's some contrivance where an agent might justify this behavior doesn't mean they or their superiors won't be held in immediate contempt for violating this order. Judges aren't idiots, and this is about as harsh of a warning as they can issue before the case even gets finished.

What happens in instances where rubber bullets are coming from another source than CBP guns?

If someone is wearing press credentials, or is being followed by a huge news camera, or is clearly speaking into said camera with a microphone, then I find it unreasonable that any officer can't assume that person is a journalist.

And if that's seriously the standard they want to hold others to, then I think it's reaonsable to assume a random person in camo without any law enforcement ID on them trying to shove me into a van is a kidnapper and I should be legally protected in using violent force against them to defend myself.

What’s strange is that this order only applies to journalists and legal observers. So if I’m just a peaceful protester, I can be arrested or be the subject of physical force without probable cause?

The wording implies that it’s ok to take cameras and recording devices from non-journalists as well, which sounds more than a bit dystopian.

Yes. That's kind of a big part of what these protests are about.

If the large crowd is told to disperse by government agents, you are no longer a peaceful protester. You are free to protest, but you are not free to protest at any location at any time. If once told to move, you do not, you can, and were always able to be removed by use of physical force.

The reason these peaceful crowds are told to disperse, is they are often not peaceful, they leave much damage to regular citizen's and business property behind, and it's not your call whether the crowd poses a danger to my car parked on the street, or my place of work. It's up to the law enforcement assessing risk of the crowd causing damage, and if they think it will, even if they have not, they have to disperse. Like when the crowd starts ignoring the fact that cars drive on the streets trying to get home from work, and starts walking through and blocking traffic. Or even leaving a pile of trash and destroying the lawn of public or private property, which I have to pay to restore with taxes.

Does your peaceful protest stay on the sidewalk? Does it carry its trash to the nearest garbage can instead of dropping it on the street? Does it destroy zero property and wait for the walk sign at intersections? Because if not, the issue is not with the protest. It's with the things you are doing which are not peaceful, to people not part of your peaceful protest.

I was moving apartments during one of these "peaceful" protests in Chicago. At that point, they weren't burning buildings and destroying stores yet. It took me 12 hours to move 2 minivan-loads of stuff. My brother was helping me. When the police tried to get people to clear the roads, the people did not. Instead, they threw a bunch of flamable shit in the parking lot where regular people's cars were, and destroyed those cars. Because the cops tried to clear the road so people, on the last of the month, could move their shit into the new apartment. after working a full day. and having to work the next day. after having 2 hours of sleep.

by the way, when my brother got home, his girlfriend's shitty old car was broken into and needed to be repaired. good thing she was unemployed and couldn't pay for it, otherwise it might have cost $200 instead of the free ducktape + plastic bag combo.

peaceful for you does not mean peaceful for everyone. and the cops, and the feds, are there to make it peaceful for everyone - not just you. when told to disperse, so people like me can simply live our already stressful lives, you refuse to, you are no longer peaceful, and should be thrown into a van and removed. and if that takes tear gas, I'm cool with that, just like you're cool with completely fucking up my life.

let me ask you this: forget protests. regular workday, mid-afternoon. a group of people decide to just start walking in the middle of the road dropping garbage everywhere and won't leave. what do you think should happen to them? nothing? does the group being large make it ok?

I'm tired of this argument that any order given by law enforcement should be assumed to be a legal order and one should just comply or face consequences. That would have such a chilling effect on the exercise of rights. Cops don't like what you're saying? Even if they have no legal reason to prevent you saying it? Just demand you disperse and now they can beat you, arrest you, ruin your life with impunity.

Oh, they happened to be wrong? Well, that's for the courts to decide later. Meanwhile, you've already been beaten, arrested, possibly lost your job, missed important events with your family, etc.

The whole idea that people should just comply with LEO commands and let the courts figure out later if the LEO were wrong completely misses the fact that the consequences for the LEO being wrong in their issued commands are trivial compared to the consequences for most people in complying with those commands.

and statistically none of what you describe happens, so the only way you're tired of it, is if you make stuff up, or take the .001% of cases and pretend that's all of them.

if you are blocking every road in the middle of the day, that is illegal. we have sidewalks for you. it's not "any order" - you're breaking the law, and are warned not to.

as far as police being wrong with a suspect - that is not for the courts to decide. that is decided immediately. and the procedure for that, is when they think you may be an armed suspect, for you to follow the order to get into a position safe for them, so they can verify your identity. not to keep standing there talking and refusing to lay down and put your hands on your head. because if they do have the correct suspect, he can take out his gun and kill them. if you don't comply, absolutely they force you to, and you are charged with not complying.

and if you look at all of those cases you're raging about, no - the suspects did not comply like they have to by law. yes, there are a dozen cops over the last decade that literally murdered someone, in the whole country. there are 12000 cops in my city alone.

> If the large crowd is told to disperse by government agents, you are no longer a peaceful protester.

There is no “except large groups” exemption in the First Amendment.

And there is no "large groups" exception to walking in the middle of the road blocking traffic.

Free speech does not allow you to break other laws. Your freedom stops when it destroys the freedom of your fellow man.

That’s an entirely different claim than the one I am highlighting as incorrect.

Your claim is made by taking a sentence out of context - context which says the reason they are told to disperse is that they are breaking the law. You made up a strawman, and are highlighting it as incorrect. I never made the claim you are highlighting as incorrect. Only you did. So you could prove it incorrect. Good job, very good argument you had with yourself, and you won it.

FYI, people don't twit in twitter. In real language, we speak in sentences, not a single sentence, to communicate an idea. The narrative doesn't end with the first period.

> If the large crowd is told to disperse by government agents, you are no longer a peaceful protester.

This is the US, not China. People have the right to protest in large crowds. Some wannabe fascist telling you to go away does not make a protest non-peaceful.

I’m bemused to see reports about the police overreacting to peaceful protests, followed by a sentence or two acknowledging that fires were set at those same protests.

There have been quite a few protests lately. Some of them involved vandalism, especially on the first day. In Portland over the last few days, there was some fireworks and a few trash cans were burning.

But the vast majority of protests were entirely peaceful. And and even greater number of individual protesters have done nothing wrong.

The police doesn’t get to shoot you in the head because you look like the people they saw on the news doing something wrong half-way across the country.

And even actual criminals aren’t fair game to police violence. This isn’t some gang war between equals. The police is expected to be better than that sort of revengeful sadism.

Here’s a great example ( https://apnews.com/edd4ebdd7a245e568da69db38aea04db , third paragraph):

“[The mayor] put on a pair of goggles someone handed him and drank water but did not leave his spot at the front of the protest and continued to take tear gas as the demonstration raged — with protesters lighting a large fire between protective fencing and the Mark O. Hatfield Federal Courthouse amid the pop-pop-pop sounds of the federal agents deploying tear gas and stun grenades into the crowd.”

The federal officers are officially assigned to protect that courthouse. They built a fence but people still managed to build a large fire on the wrong side of the fence. It looks like the officers have a good reason to want the crowd to disperse, although I’m not sure that it’s a great idea to use tear gas so close to a fire. Unfortunately, as I understand it, if the crowd refuses to leave and tear gas has been ruled out, the remaining options are all very violent.

"But the vast majority of police were entirely peaceful. And and even greater number of individual officers have done nothing wrong."

by the way, peaceful to you is not peaceful to me. when I'm driving home from work and literally every road is filled with people on the road, and I am unable to get home till midnight - you are not peaceful, and you are breaking the law. when you refuse to clear the road and let me come home so I can sleep before the next day at work starts, I'm glad to pay for the tear gas and the rubber bullet that hits you in the head. you clearly don't care about my well-being, so I not only don't care about yours - I want physical harm to come to you.

this is why assemblies outside get a permit, and a designated route to follow. so the majority of people, who are not a part of your rage party, can get routed around and live their lives. you choose not to follow the social contract with the rest of society - I see zero issue with police not following the social contract with you. you have escalated the situation, so expect an escalation from the people you're "peacefully" harming - the majority of people.

A lot of the problem here is that there are two groups at the protests: police brutality protestors, and assholes who just want to watch the world burn.

I came to ask the exact same thing. According to this article[0] I read the other week, (and according to my admittedly limited understanding of US law) you definitely need probable cause to arrest someone.

Has this right been repealed in the US? Is this not currently the case? If so, are there court decisions that have temporarily repealed these rights? Am I misunderstanding something?

The cynical part of my mind tells me that nothing has changed apart from the police brazenly ignoring the law, but I'd like to understand if I'm missing something in this regard.

[0] https://lawandcrime.com/legal-analysis/two-dhs-officials-app...

Yeah. The fact that an order was needed in the first place is troubling. I thought there were laws already about capricious and arbitrary arrests of regular people, not only journalists.

I'm not really sure how this is going to be enforced if the federal agents cannot be identified?

They can be identified by their badges, just like any other law enforcement officer. They all wear badges with unique badge numbers.

You missed the part where they have been removing and covering their badges fairly consistently.

I'd like to see this codified into law and practice:

As soon as you cover/hide a badge/identification you are no longer acting as law-enforcement and are deemed a terrorist inciting fear & harm on the public.

I saw an interview with the mayor a couple of days ago. He ended by throwing a Molotov cocktail that the interviewer completely ignored: "It would be really unfortunate if the irregular behavior of these federal agents put them in harm's way." (My memory is not great so this quote may be a bit more explicit than the original?) In general, if an unidentified group of armed and camouflaged ruffians pours out of unmarked vans to menace our neighborhood, we should shoot them.

I've heard stuff like this a lot, but just dont believe it. The people who are more likely to be armed arent being targeted. Plus shooting at federal officers is likely to be a death sentence, both literally and in regards to sympathy / support for yourself and beliefs.

If they are not wearing badges and identification of which agency they are operating under the authority of, then the laws should be that they are not legally operating as federal officers. That's the point. I'm allowed (in many jurisdictions) to defend myself with deadly force if necessary against an assailant. Without properly identifying themselves as federal agents, they could be any random person who bought camo and tactical gear at any random gun shop or military surplus store.

Federal agents should be required to clearly identify themselves as such.

I would never shoot an unarmed person; that would be murder. Gun possession is also not a reason for anyone to be shot. However, by all reports these agents are menacing people with their weapons, bundling people into unmarked vans, etc. Those behaviors threaten lives, and responsible gun owners will intervene to stop them.

It’s civil law, not criminal. It adds an extra zero to the settlement a one-eyed journalist will get from their lawsuit against DHS about 26 months from now.

This should not require a court order.

Temporarily?? I could've sworn this was a permanent right of US citizens?

The TRO means that there can be actual punishment, fairly swiftly, for violations, because violations become contempt of court for which the court can issue civil penalties on a near-immediate basis. All the things that make holding government agencies and government agents accountable and laborious are cut through when there is a specific court order and not just general law in play.

I've never read 'The Patriot Act' in full.

Better start printing thousands of T-shirts saying JOURNALIST.



Oh please. People are not being abducted off the street by the US government never to be seen again, they are being arrested. They are not being tortured or sent to a reeducation camp. They get a phone call and access to a lawyer before being tried in court.

For all the faults of the US, let's not cast these current policing actions as equivalent to what is going on in HK.

They are claiming that they are not arresting people[0][2] when they are, which is apparently illegal[2][1]

[0] “They did take them to an area that was safe for both the officers and the individual to do the questioning,” he said. “It’s not a custodial arrest. We need to question this individual to find out what their role was in this laser-pointing.”

Eventually, Cline said, the protester was released “because [DHS] did not have what they needed.”

[1] In Dunaway v. New York the Supreme Court considered whether police violated the Fourth and 14th Amendments when–lacking probable cause–they took a person into custody, transported him to a police station and detained him for interrogation. Once again, six justices found that police violated the U.S. Constitution with such actions.

Per that landmark case: [T]he detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room.

[2] https://lawandcrime.com/legal-analysis/two-dhs-officials-app...

This is good information. Again, doesn't suggest that this is kidnapping at all or akin to what's going on in HK. You are addressing this issue the way it should be approached, rationally and with evidence.

As someone who was arrested for filming police brutality 10yrs ago: I was not given a call, I had no access to water. I was held in a fenced area of a Miami parking garage. I had to fake a medical emergency and only then did the EMT responders force the police to give me access to water. Another “inmate” also said he had a medical issue shortly thereafter and also needed water but they refused to call the ambulance. When I got out, the charges were not in the system. I spoke with numerous lawyers who advised if I pursued a complaint or lawsuit they’d be likely to retaliate and advised for my own safety not to pursue it.

Am I the only person who remembers Pennsylvania state police using the same “kidnapping” tactic in 2009 ( http://thecollegepolitico.com/2009/09/25/the-truth-about-the... ).

I’m not saying it’s a good tactic. I’m saying it’s not new.

In the famous case of the individual placed into an unmarked van by unidentified federal agents, there was no arrest, and no access to a lawyer (and no trial in court). There was only an abduction, which was over after some number of hours.

If the agents were arresting people, giving them access to lawyers, and taking them to court, the issues would be very different.

Police are given the latitude, with some limitations, to arrest people legally even without charge. Importantly, they must release uncharged persons within a certain timeframe which seems to have been respected in this case.

If ultimately there is no charge and the person is released, they can obviously contact a lawyer and have access to the courts.

We can debate all this as a matter of public policy and law. What we should not do is sacrifice our credibility by pretending that people are being kidnapped and "disappeared" or comparing this to what is going on in HK.

Yes it's very important that CIA-sponsored protests be differentiated from non-CIA-sponsored protests! One is good and the other is bad!

If you get pulled into an unmarked van by someone who is not wearing a police badge. That is an abduction, not an arrest, regardless of whether the person doing it happens to belong to a law enforcement organization.

> People are not being abducted off the street by the US government never to be seen again

Uh, you sure about that? The only part that's not provably false is the last five words, and how would you expect to know for sure on those?

Well I can't prove a negative, but i'm reasonably sure given history and the lack of any evidence otherwise. Do you have a link for any evidence I should know about?

Do you have evidence that everyone so far abducted in Portland has been set free, and further such kidnappings curtailed? Or are you instead arguing that the behavior of the US federal government in this circumstance merits a presumption of innocence?

I'm saying i'm not going to get outraged by simply imagined transgressions, there's going to have to be some evidence. The irony is, i'm not a hard line law and order type. I believe there should be some resistance to the prevailing authoritarian mood.

But I refuse to embrace hyperbolic rhetoric, it isn't helpful, call a spade a spade.

So, the second one, then.

Are you saying you're not a racist? Do you have any evidence to prove you're not secretly penning racist content across the web under a pseudonym? Prove that you're innocent.

Or should people wait to judge you until there is some actual evidence?

So, the second one then.

Yes, of course. The videos and accounts of illegal arrests and detentions out of Portland are all fake, of course. Or, at the very least, they don't show what they purport to show.

Do you hear yourself? At all?

Do you hear yourself? At All?

There is evidence of government officials arresting people-- that is not in dispute. All that is in dispute is if it should be characterized as kidnapping or something akin to what is going on in HK with mass detention centers and reeducation camps.

I've lost track of what you're even objecting to at this point, but I for one never denied that there are arrests going on in Portland. If you want to claim they're illegal by all means talk to a lawyer, just see if you can manage to avoid pretending they're kidnappings in the meantime.

Guantanamo Bay. “Terrorists” are sent there and lose all constitutional rights while they’re there.

If you're claiming that people from Portland are being sent to Guantanamo Bay, you're going to have to offer some evidence.

The parent I was responding to claims there's no evidence that the US has ever "disappeared" people with no rights. My point is simply a counter to that.

No. The claim was that there is zero evidence that has happened to anyone in Portland. We're talking about how to characterize the arrests made in Portland, not US foreign policy.

Oh please, we are now debating which country is less authoritarian. Any Russian or Chinese government troll will launch similar comparisons in defence of Putin or Xi: but at least we are not doing [x]. Kidnapping is kidnapping. Some of you have gone quickly from freedom of speech and democracy to at least we only disappear people for a few days. And we only beat journalists we dont torture them. And we only persecute minorities we dont put them in camps. And we only let them rot in ghettos not gas chambers. Be serious, you are part of the problem.

You were the one who tried to compare them as equally authoritarian, and they are not -- as much as you want to convict them of the same crimes. If anyone is being arrested off the street for free speech then I will stand shoulder to shoulder with you and oppose it. If they are being arrested for violence or property damage, then I will let the courts deal with it.

Being shrill and exaggerating what is going on is not helping, it is part of the problem.


I believe that our government and corporate culture is way too authoritarian and have been speaking out against it my whole life. That does not mean that we should depart from all sense of proportionality and reason. You do us no favour by exaggerating and mischaracterizing the situation.

The US government isn't kidnapping anyone off the street for damaging wall paint -- they're arresting people. If you can't see the difference and keep that simple fact straight, you hurt your own case and seem unreasonable and untrustworthy as a source.

If there have been unjust arrests, then say so and make it known. But don't pretend they are kidnappings -- it sounds ridiculous on the face of it and makes you sound childish.

I keep reading that people are being “arrested”, held for a couple hours, then released without charges. Where is any kind of justice in that?

It isn’t about justice. It’s about bullying, intimidation, and escalating protests to have scary pictures to show in politics ads.

How is being arrested kidnapping?

Lawful arrests are followed by swift access to the courts. The arrests under discussion aren't like that. Taking one's freedom without due process of law is precisely kidnapping.

Well, that was the US before a bunch of manic Nationalist idiots from Europe scared into exile everyone of some use in society. Thee folks proceeded go lay the groundwork for US cultural and economic dominance in the post-war era. Somewhat of a free lunch... and these don’t last forever

Do you have some reference material I could read regarding these nationalist idiots from europe?

I assume this is WW2 being Godwinned here.

Nazis in WW2. Crash Course World History has a good, broad overview of it if you have absolutely no reference point.

France was in the grip of a year long Yellow Vest movement. Blood was spilled, bones were broken. This dumping on USA is getting tiring.

HK protesters, regardless of one's views on their political demands or the HK police response, were not simply "spraying grafitty" [sic] on buildings.

Facts are our friends these days.

But this post is not about France.

"Had it been any other country, the UN would have condemned it long ago for being an authoritarian country."

I kind of ignored that line because I don't know if I can trust the UN.

Dang, did you mess with the ranking of this post?

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