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July 16, 2012

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As an ex-Googler who once worked on a project related to the web crawler, I'm confident that neither #2 nor #3 is the case. Suffice it to say that the reasons why either of those would be a really bad idea were well understood in that group.

The software used to track the F.D.A. scientists, sold by SpectorSoft of Vero Beach, Fla., costs as little as $99.95 for individual use, or $2,875 to place the program on 25 computers. It is marketed mainly to employers to monitor their workers and to parents to keep tabs on their children’s computer activities.

I thought that it has (sadly) become relatively uncontroversial to say that anything produced by an employee while they are working can be viewed by the employer. This 9th circuit decision seems to put some limits on that, but I'm curious if legally, the FDA, as the employer, can simply say that anything a person does while at work is work product and they have no reasonable expectation of privacy, especially if it is from a work domain. Here is a NJ Supreme Court ruling suggesting that there is some notion of privacy, but only if the person takes steps to password protect their accounts, and this can be avoided if the electronic communications policy were worded in a way to cover it.

This is not to defend the FDA in any way at all, but I thought this ship sailed a long time ago. So when Pierce says this is something bleeding over from the intelligence community, that suggests that the origin is a lot more rarified than it really is, and it is basically the default assumption for most cases.

It's not the spyware so much as the extravagantly inept handling of the information it gathered.

I'm not really bothered by spyware. It's a way of life in (large, at least) business these days.

"pissantery" will be added to my lexicon, right after "crapulous".

One or more authorized users went to the site via Google Chrome, and that's how the URL got into the Google system.

I'd like to see a cite explaining that this is possible. The best cite would be a reference to the source code, which is freely available online.


Moreover, can someone explain what precisely is wrong about the spying? I don't like it, but as far as I can tell, the FDA is doing no worse than many businesses. So if you think this behavior is wrong, what legal rule would you propose to block it?

I'd have to know a lot more about the "spying" before forming an opinion about it.

Supposedly the scientists were leaking confidential information. That sounds bad. But suppose the confidehtial info was material about nefarious behavior on the part of those who wished to keep the confidentiallity? Then the leaking becomes heroic whistle blowing.


Or maybe it's just disagreements about policy. Maybe the FDA leadership has some sort of policy that the scientists oppose so they scientists are going around the leadership to other parties (such as COngresspeople) to undermine the policy. maybe the "leaking " nature of their actions is fear of retaliation for disagreeing with the higher ups. IF that's the case then it looks to me like there are some serious mangement problems inside the FDA. People who work for an agecy should be able to make good faith criticisms of policy from within the agency and be heard. They shouldn't have t0 go outside the agency and if they do they shouldn't be punished for it since it'everybodies' interests to have good policy. The leadership should be willig to process feedback about policy, not marginalize and intimidate.

I can undewrstand the rationale for cosidering work produced at work to he be the business of the employers and not private. I can also understand that that there should be free exchanges of inforamtion between an agency and other parties including info that might make the leadership of the agency appear to be amking a mistake. Feedback is necessary for course correction!
Onthe other hand there probably is info that has to be confidcential for perfectly legitimate reasons.
I can't tell from this article wha the situation is.
Well I'm rambling on here so I will stop.

i'm with LJ. your employer, who provides the computer and network specifically for you to do your job, is watching what you do with it? SHOCKING!

it'd be like having a supervisor watch you drive the forklift and make a note if you tried picking up and moving things you weren't supposed to pick up or move. SHOCKING!

Is anyone troubled by the fact that the feds acquired proprietary data from private entities and then, oops, put it in the public domain? I'm thinking this could be medical records, tax returns, whatever. What is a citizen's remedy for this kind of boo-boo? Answer: no remedy, none whatsoever.

Federal agencies are people too, you know.

Employees are consumers, voters, taxpayers, and faceless bureaucrats but have little in common with the real corporate people who monitor their activities and speech.

Real people are accorded the protection of anonymity during elections.

Real people are different than you and me.

I hope no one is reading this.

I mean, is this going out live?

Is anyone troubled by the fact that the feds acquired proprietary data from private entities and then, oops, put it in the public domain?

No, not really. What's the alternative? Make it so that anyone can sell an X-ray machine without having to do any testing or certification at all? I mean, all entities with data occasionally fail to secure it. When private companies leak data about me, I have no recourse. That's just a fact of life.

No, not really. What's the alternative? Make it so that anyone can sell an X-ray machine without having to do any testing or certification at all?

The alternative is demanding competence and accountability. People and companies can be ruined by improper disclosure. Who was the private contractor and how was that entity vetted? Something like this, both the surveillance and the disclosure, should be a major scandal.

I'm sure that there's an insurer willing to offer a policy titled "Loss or Breach of Data Liability/Cyber Liability" to anyone who wants it.

McTex, if a credit reporting agency completely fabricates data about me and sells it to other companies, can you explain precisely how they get ruined? Because that sort of thing happens every day. Moreover, until recently, companies didn't even have to tell you that they had suffered a data breach. How can any company be ruined if they don't even have to tell you they screwed up?

Ah, crap, it's out there already!

http://andrewsullivan.thedailybeast.com/2012/07/from-sea-to-streaming-sea.html

Turb asked, rhetorically:

"Make it so that anyone can sell an X-ray machine without having to do any testing or certification at all?"

Whaddaya, channeling Milton Friedman?

Newt Gingrich's band of Marianas Trench lovers campaigned on that precise platform in the 1990s.

You'd give your kid that new anti-cancer elixir you scored from that guy Rico you met on the beach in Puerto Vallera to route the tumor making a Picasso portrait out of one side of the kid's face and then you'd let everyone know the results via the skywriting by word of mouth (stole that one from John Lennon) of the magic market.

If the drug poisoned the kid immediately and he died a horrible death, it would eventually get around and other parents would eventually quit using it on their youngsters.

If the other parents asked if you did a blind test, you'd say, yeah, my kid went blind too.

Unless, of course, you were a distributor of the drug and making a lot of money from its sale, in which case, maybe you let everyone else know about the downside ... or maybe not.

Let's do a cost-benefit analysis and move our operations to an unmarked P.O. Box.

There, now, what was it you wanted to know?

Do skywriters ever suffer from writer's block? (stole THAT one from a New Yorker cartoon)


But seriously, I am troubled somewhat by propriety data leakage.

Turb's, Medtronic's, and mine.

I thought this internet doo-hickey was the answer. Or was love the answer?

I can't remember now.

I'm also troubled by a PRIVATE outsourcing contractor running a public website.

Where's the server? Shanghai?

Vetted? Sure it was, but the assumption was the private sector could do it better and cheaper.

Something tells me "better" also means "cheaper".

The private sector can do it cheaper and cheaper.

Faster too.

Something like this, both the surveillance and the disclosure, should be a major scandal.

If it should be, I would think the harmed parties would see to it, thinking mostly of the private companies whose proprietary data was revealed. Maybe they will. I guess we'll see.

With that, I smell the scent of "why aren't you guys criticizing Obama when you should?" In case my nose is right, I'd point out this:

As for the actual news substance of the story, what Charlie Pierce said:

I have a suggestion for the Constitutional Law Professor In Chief.

Knock off this scarifying pissantery. Today.


Well there does appear to be limits when it comes to monitoring executive branch employees, e.g.:

In June, OSC special counsel Carolyn Lerner warned federal agencies that monitoring their employees’ personal e-mail violated the law if the intent was to retaliate against whistleblowers. The White House distributed her warning to agencies across the government, an acknowledgment by the Obama administration that there are limits to employee surveillance.

And:

Two years ago, the FDA’s parent agency, the Department of Health and Human Services, reminded it that employees have a right to air their concerns to Congress and journalists.

So, the FDA's actions here aren't like Coca Cola firing and suing an employee for publishing the secret formula on the internet.

cries of "retaliation against whistle-blowers" seem premature, based on that NYT article.

if the five scientists in question were really leaking proprietary information, and then got caught doing it, or if they weren't but felt offended to be suspected, their claims of "retaliation" might be nothing more than spite.

rather than immediately jumping to Greenwaldian outrage, perhaps waiting and seeing is the more prudent course, at this point.

if the five scientists in question were really leaking proprietary information, and then got caught doing it, or if they weren't but felt offended to be suspected, their claims of "retaliation" might be nothing more than spite.

Well sure, I was just noting that there are different principles at play when it comes to Executive Branch employees vs. employees of "The Coca-Cola Company" and that the former might have good reason to think they wouldn't be monitored (i.e., it's illegal depending on the circumstances, said circumstances being unclear and in dispute, as you note).

That said, from the WaPo article I linked to above:

FDA computers post a warning to users, visible when they log on, that they should have “no reasonable expectation of privacy” in any data passing through or stored on the system, and that the government may intercept any such data at any time for any lawful government purpose.

So the employees were on notice, though there is the "lawful" caveat there.

(let me amend to say "Greenwaldian" wasn't aimed at anyone here)

I'm sure that there's an insurer willing to offer a policy titled "Loss or Breach of Data Liability/Cyber Liability" to anyone who wants it.

HSH, it's called "Errors and Omissions" insurance, and every IT company has it. (Maybe every other kind of company, too, but I'm only familiar with IT companies.) And you have it precisely for this kind of situation. Well, for other kinds of errors, too, but this falls right in the focus.

As for people discovering that their e-mails from work had been recorded and reviewed by their employer, I have just one question: How does anyone who wants to do something like "confidential [emphasis added] letters to at least a half-dozen Congressional offices and oversight committees" think doing it from work is a good idea??? If it's their e-mail system, of course they have access to everything on it. (Or is someone suggesting that the FDA was hacking their e-mails from theirhome systems, not using their government e-mail accounts?)

Permit me to bloviate in the other direction, more or less, by expressing solidarity with the scientists in question, who were trying to alert others to their opinion that various diagnostic devices were subjecting patients to excessive radiation.

They were attempting to regulate effectively, which pleases me, although why they would attempt to regulate through the offices of Charles Grassley is pretty much fascinating, like it would be fascinating if New Jersey sanitation regulators sought the help of Tony Soprano to reduce the number of shot-up dead bodies turning up in the local landfill.

I mean, yes, obviously, this IS the guy who can help, but maybe not the way the scientists think.

Still, I've worked for Federal government agencies and I would never express criticism of the agency's mission or its procedures to anyone via work email, despite reassurances that I'm not being monitored, anymore than I would copy my supervisor on the emails and not expect a red-blinking light on my telephone roughly six second later.

Neither did I access porn via my work computer, if I remember correctly, and I do, because I have a pornographic memory.

No, I'd be sneaky and reconnoiter undercover with my outside contacts and maybe spill the beans at Obsidian Wings and make the Federal Government subpeona OBWI about who this guy Countme-In is and then you'd all cover for me, right, and take the fall with me.

Right?

Hello?

Same if I worked in the private sector, where your whistles are confiscated at the door. In fact, any kind of whistling is looked upon askance.

"Pembroke, a little bird told me you were whistling in the break room the other day. Care to explain?"

Then, of course, there is the accidental dump of proprietary info by the private contractor, and I'm always vaguely but mockingly outraged that we can't make summary judgements about how the private sector always f*cks everything up, you know, like the government does.

Like the O-rings, manufactured by capitalist public firm Morton-Thiokol, in the Space Shuttle that went kablooey and sent Christie the school teacher into the ocean in a fine mist, which she probably deserved because her pension was extravagant and she took the summers off with pay for spaceflight -- kind of double-dipping, if you think about it.

That was the government's fault, because they always f&ck up.

All of the mishap-free Shuttle flights were due to Morton-Thiokol's excellence, of course, and nary a glossy photo of the Shuttle going tits up made it into the annual report that year.

For the benefit of the engineers (you know who you are) in our midst, allow me to clarify that Morton-Thiokol engineers expressed their concern about the O-rings and temperature differentials, etc in the hours before the launch and requested the first "no-fly" decision (from Thiokol engineers), but were overruled by both NASA and Thiokol managers, because .. well, because because.

http://msl1.mit.edu/ESD10/block4/4.3_-_Challenger.pdf

Hey, I'm a humanities major. I bloviate first and do the research later.

I should be kicked upstairs into management with a car at my disposal.

And, I wouldn't be surprised if the Space Shuttle, telltale black smoke issuing from the O-Ring joint, was front and center on the Morton-Thiokol annual report that year.

But if rants contained the entire precise truth all the time, the internet would just end up in "aqueducts, ... they gave us the aqueducts" territory all the time, and who would find that interesting?

No, I'd be sneaky and reconnoiter undercover with my outside contacts and maybe spill the beans at Obsidian Wings and make the Federal Government subpeona OBWI about who this guy Countme-In is and then you'd all cover for me, right, and take the fall with me.

Everyday of the week and twice on Sunday.

telltale black smoke issuing from the O-Ring joint

John Sununu, is that you?

I inhaled sharply, choked, and snorted left- over pasta with chanterelle mushrooms (both legal substances, I 'll have you know, despite my youthful indiscretions, undertaken with great discretion, or so I thought at the time) all over my keyboard at that question.

Yes, I am John Sununu, and I wish I would learn to be recognizably human, instead of a fat-a@sed, loud-mouthed, subhuman Cuban, Lebanese, South American (on my mother's side) alien anti-American f*ckwad jask@ss who brays Ayn Randisms all over the airwaves while, parasite filth that I am, living at taxpayer expense in a succession of government jobs with socialist, pinko government healthcare (not that I took their advice to quit throwing my 350 pound self headlong, mouth open, at the fattiest bits arrayed for my consumption on the Golden Corral all-you-can-eat-vomit-eat table, the busybodies) and being helped along in my entrepreneurial comments today by the hard-up taxpayers, who paved the road my three chins and butt so big the universe has to keep expanding just to fit it in wreaked wear and tear on, and who freshened the air my buddies in the coal industry dirtied up, and who rush to clean up the water supply I sully every time I take a Republican, freedom-loving dump and I'm Mitt Romney and I approve of these comments, and you, you ... black rapper Chicago person ... you're not.

On reflection, I didn't mean "350- pound self, and I take it back.

I meant 347 pounds, but I thinmk this suit makes me look thin, don't you?

I was taken out of context, the context being I'm a loud-mouthed douchebag who would happily have Sammy Davis Jr up to the White House, if the FBI will check the silver and change the seat cushions on the Oval Office divan afterwards.

[re. the Challenger]

I attended a wonderful talk given by Tamara Munzner at the Usenix 2002 technical conference. One demonstration of how not to display data showed the chart the Morton Thiokol managers used for their decision about whether to launch the shuttle. It shows the locations of O-ring failures on the solid fuel boosters. You can see it along with a second chart here.

The second chart graphs damage vs. temperature. If they had looked at that chart, as Ms. Munzner said, "a turnip would have said don't launch."

I think it is pretty easy to look at Challenger and say "eh, they shouldn't have launched". But that misses the larger point: the space shuttle was an appallingly bad design that had an extremely high risk of blowing up in any of a million ways. It couldn't be made safe, no matter what kind of charts engineers presented at meetings. Feynman estimated that it had a 1% chance of blowing up per flight and low and behold, after 135 flights, we have two catastrophic failures.

Turb, I agree, the shuttle was the wrong idea. I can't resist quoting, though...

Many were increasingly of the opinion that they'd all made a big mistake in coming down from the trees in the first place. And some said that even the trees had been a bad move, and that no one should ever have left the oceans.
Feynman estimated that it had a 1% chance of blowing up per flight and low and behold, after 135 flights, we have two catastrophic failures.

More to the point: if everyone had been aware that there was a 1% chance of catastrophic, no-survivor-left failure per flight, there still would have been volunteers to run the shuttle missions. But they'd have been volunteers that understood the odds, and furthermore the public and Congress would have been aware of more realistic appraisals of the probability of failure, and would have been able to fold those costs in.

Which is not to say that there weren't design flaws, some of which might actually have been fixable.

I don't know ral; I think multicellular life was when things took a wrong turn.


they'd have been volunteers that understood the odds

I wonder about that. A lot of astronauts had spouses and children. I wonder how many of them could have justified a 1-2% death risk to themselves or to their families. And I wonder what the longer term career implications are. If you're a scientist who does a stint as a mission specialist, does your willingness to take the 1-2% chance affect your ability to get tenure and grants later on? Will people conclude that you are too unstable or too much of a thrill seeker to be entrusted with responsibility?

ISTM that the Shuttle program, like the manned space flight program that preceded it, was a product of the Cold War. Virtually unlimited resources, both in terms of money and human capital, were poured into it on both sides in an attempt to "win" the space race.

It remains a testament to how far we can advance when such constraints are lifted (moon landing in 1969! Are you serious?!!? I thought this The Onion headline and accompanying story from their 20th Century Book sums up things pretty well).

However, in hindsight, it seems that perhaps those funds could have been better spent elsewhere.

"Many were increasingly of the opinion that they'd all made a big mistake in coming down from the trees in the first place. And some said that even the trees had been a bad move, and that no one should ever have left the oceans."

What could go wrong?

At critical points along the line, there should have been a commission to weigh the costs/benefits of the entire enterprise. For example, alright, we emerged from the primordial slime and on to ocean, on to tree, and on to crawly things upon the Earth, on donner, on blitzen, on to Tom Delay .... on ....

.... whoa, whoa, whoa..... hold it right there, the commission members, lurching forward in their seats, would say in unison. Back the video up to .. yeah .. right there. Now you're saying we started with primordial slime and at this point, eons later, we end up with .... well, the same old primordial slime in a suit and a ten-gallon hat with no cattle, not to mention with this accursed Powerpoint travesty.

Seems to us we went from primordial soup to being IN the soup, or, if you will, from soup to nuts.

Ladies and gentleman, I move to reboot. God, what say you? (God, having a claim on origins, received a seat on the commission)

God, explaining wearily that while the entire original primordial slime-to-ocean-to-tree-to-biped-to-moped is, to God's mind, a questionable construction at best ... (has the word "miracle" lost all of its coinage, God thinks to himself ... never mind) .... whatever ... it's clear no matter what happened or from what perspective you look at it, what we've ended up with here is, IMHO, slime.

So yes, waving his hand perfunctorily, almost dismissively, sick of the whole mess, God votes to reboot, whatever that means.

With renewed energy, God sits up and slaps the flat of his palm on the table like a crack of thunder and points to the Powerpoint screen: "But I'm telling all of you, next time around, no matter the sequence of events, we can make sure we don't end up with the likes of Tom Delay again ... I'll go along with that this one time, because damned if the whole outfit didn't go off into a gully there .. but if you think I'm going to tolerate the likes of Friedrich Nietzsche again, you've all got another revelation coming.

God pauses, sits back in his chair, looks around. "Now", he says, "Kierkegaard", and smiles.

"There's your man."

Slart wrote:

"But they'd have been volunteers that understood the odds, and furthermore the public and Congress would have been aware of more realistic appraisals of the probability of failure, and would have been able to fold those costs in."

As a layman, (if all of the layman were laid end to end, they'd all get laid except for me), I suspect the experienced, grizzled former test pilots in the bunch took the more wide-eyed volunteers aside over drinks at the roadhouse on the edge of town after those reassuring meetings with NASA and contractor management and said, smiling like crocodiles out of one side their mouths: "Christie, you're a nice person and we're sure one hell of a teacher and we are pleased as heck that you are one of us, but, tell you what, those four-eyed pencil-pushing geeks in that meeting don't know anymore about what we're up against on these missions in that .... bottle rocket .... than a Russian chimpanzee knows how to quote the ingredients in a package of Tang, and even if they did, they wouldn't tell anyone.

Let us ask you something, Christie. You ever wonder why those space suits, monkey suits more like, are so inflexible? Well, so's you can't inadvertently bend over and kiss your purty behind goodbye, on camera, in front of the American people, taxpayers all, as we board that contraption, which is basically a tube of metal jerry-rigged with twine and chewing gum encasing a ginormous flammable gasoline can with the power of a thermonuclear weapon meant to help us slip the surly bonds of Earth.

That's what we wrap our legs around with nothing to hold on to except a fake joy stick. Sorry, did you think that was connected to anything? Nope.

The American people wouldn't be able to handle that, we mean, they'll handle it, by playing the footage of vaporized astronauts over and over and over again with frequent commercial breaks and we'll be right back with more, but what we mean to say is the American people, as taxpayers, wouldn't able to handle seeing you kiss your butt goodbye.

Look, the American people are thrilled with the IDEA of the danger but they have no idea the fools we are to sit our sorry butts down just a few feet above kablooey-goes-the- weasel.

Why, it'd be like if you walked around boasting to everyone that you, miss entreprenurial, risk-taking job creator put everything on the line cause, well, your a bare-chested (not you personally, Christie, it's a metaphor .. hell, that'd it be something, you parading around without a shirt on ... never mind) .... risk-taker, and then someone decides maybe they'll raise your taxes a tiny bit or add a little complexity so's some of your fellow Americans have the opportunity for healthcare insurance, and all of a sudden the bulkheads in little miss risk-taker's bowels let go and she falls to the floor in a fetal position whimpering that THAT's too risky, I can't handle it.

They think they know the danger, and in fact, in our system of government, such as it is, we allow them to think they know, and for sure as hell they think do, exactly how everything should work perfectly, without mishap, error, or extra expense inside the government. Everyone outside the government knows precisely what to do. Oddly, enough, they think everyone inside the government knows squat and acts accordingly. Then, there's turnover every few years and we all change positions, those outside are now inside and what do you know, they don't know squat, and we are on the outside and suddenly we're know-it-all geniuses.

But getting to the real point, because us former test pilots tend to blither on after a few drinks, despite our reputations as silent, stoical heroes keeping our own counsel ... this whole shebang is a magic show. The only reason you and me, and Gus over there, are riding on that cherry bomb tomorrow morning is because the American taxpayer would turn the TV off, wondering why a big empty hunk of cylindrical metal heading for the ether is worth paying for with his hard-earned tax dollars.

Plus, he'd wonder why the Soviets are so brave that they can shoot their cosmonauts into space and we can't.

Magic.

Course, Gus and me and the others know the odds of coming back in one piece given the darn fool things we did in our previous jobs.

I don't know ral; I think multicellular life was when things took a wrong turn.

I'd say it was whenever someone made the first non-alcoholic beer.

Or, Ugh's Onion article.

Shorter, faster.

I wonder about that. A lot of astronauts had spouses and children. I wonder how many of them could have justified a 1-2% death risk to themselves or to their families. And I wonder what the longer term career implications are. If you're a scientist who does a stint as a mission specialist, does your willingness to take the 1-2% chance affect your ability to get tenure and grants later on? Will people conclude that you are too unstable or too much of a thrill seeker to be entrusted with responsibility?

I don't have any cites to support my opinion, of course. But I think the Gemini and Apollo missions were plenty risky, as was the training, and there wasn't a shortage of applicants.

But my intention was not to claim that there would be a shuttle program if the true odds were known so much as that the way the shuttle program was run would be more honest and aboveboard. I'm not sure Congress would have tolerated a 1% fatality rate, had they known in advance.

Compare to the fatality rate for climbing Everest. Looks like the overall rate for the 1921 through 2006 period was around one fatality for every ten successful summits. More recent data looks like it's running around one in twenty. There still doesn't seem to be any great shortage of people willing to climb Everest, in spite of the fact that you have to climb over or past several of the bodies on the way to the top.

So I expect that a known failure rate of 1% would have still gotten plenty of shuttle volunteers. On the other hand, it might have reduced some of the "Why can't NASA get the shuttle launched?" talk that preceded the Challenger disaster, and may have played a role in the decision to launch.

A 1-2% risk of fiery death for a chance to go into Outer Space? I'd bet that many millions would see that as a more than reasonable offer. It's not as if one would do the trip on a regular base.
---
The whales (when they were still dogs) went back into the ocean. And where did that get them?

Is anyone troubled by the fact that the feds acquired proprietary data from private entities and then, oops, put it in the public domain? I'm thinking this could be medical records, tax returns, whatever.

I wouldn't worry too much about the Feds getting their hands on large numbers of medical records then publicizing them. It'd be the mother of all HIPAA breaches; depending on exactly what happened, you're talking anything from jail time to massive class action lawsuits that could potentially lead to the dissolution of the affected organization(s). [See the "breach notification" sections of HIPAA as well as the various enforcement clauses of both HIPAA and HITECH.] I don't think any hospitals are dumb enough, or cavalier enough, to give the Feds significant quantities of PHI, and if they did there would need to be ironclad agreements indemnifying them against a downstream breach -- which would presumably make the third-party handlers (such as those who posted the docs in the original post) liable, and I don't think they're any more risk-prone in this arena given the potential consequences.

Tax returns, otoh, are not similarly protected as far as I know, so your concerns there are likely valid.

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Whatnot


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