Author Archives: Sarah Baker

ACA Open Enrollment 2.0

The ACA open enrollment period for 2015 coverage ended on February 15.

Before the ACA, consumers could purchase health insurance 12 months out of the year. Now consumers are limited to an “open enrollment period.”

This is meant to increase access. Or something.

In any case, the federal exchange website continues to be pathetically bad.

It would not accept the login information I had recorded in my passbook. I tried the “forgot my password” options successfully implemented on thousands (millions?) of websites around the world. After hours of frustration over successive days of effort (it rejected all my answers to questions about my pet’s name, best childhood friend, favorite kind of food, etc.), I gave up and created a new account.

This did not end my problems. Every time I entered my Social Security Number, the system kicked me out. It knew, you see, that a person with that SSN already had an account (it just disagreed with me about that person’s favorite pet and best childhood friend). I was only able to create the new account when I skipped the first field asking for my SSN.

I then entered a mystifying cycle of being asked for my state, clicking the button to start the process, being delivered to a new screen where I was asked for my state, clicking the button to start the process, being delivered to a new screen asking for my state, etc. This went on, to the tune of “I Got You Babe,” until I made a snow sculpture with Bill Murray and started clicking random buttons to break the cycle.

After that, I answered a series of questions and viewed some options. Eventually, I was told that I had to enter a Social Security Number if I wanted to buy coverage. This seemed counter to what I know of the law, but I was simply grateful that I was able to enter the number at that point without getting kicked out for impersonating that other Sarah Baker with the same Social Security Number but a lesser predilection for Mexican food.

I successfully purchased (I think!) a health plan for 2015.

All in all, it took hours of effort over a series of months to complete this process. This is in sorry comparison to what could be accomplished on a website like ehealthinsurance.com before the federal government decided to “make things easier.”

I was not alone in experiencing continued glitches with this ridiculous website. Peter Suderman gets a money quote from a federal government employee who emailed him with frustrations over the process:

“Today’s some sort of deadline, they’re e-mailing me like mad,” he wrote. “I signed in to try and fix that and tell them that my [relative] already got insurance. I was able to log in, but that’s about all, there were buttons, I clicked them and nothing works. This is a solved problem, Amazon, Google, Facebook, hell every bank and probably 50% of small businesses have a more functional website than this.”

Anyway, now that we all have health insurance (except for the tens of millions who still don’t) let us not forget that having health insurance is not the same thing as getting health care. Being forced to buy the former in no way ensures the latter.

Premiums spent on high-deductible policies sap funds available to pay for actual care. Having insurance at all results in higher charges per visit, even when the patient is paying out-of-pocket for the deductible.[1] Narrow networks sometimes mean people cannot see the doctors they want or need unless they come up with the money on their own. Compounding the problem, providers are increasingly opting out of the lower reimbursement rates and higher headache rates associated with the plans.

The doctor shortage is not just an abstract problem. It is a real-world problem with real-life consequences for patients like Julie Moreno, who needed cataract surgery:

For three months after her November 2013 diagnosis, the 49-year-old Mountain View resident said, she tried to get an appointment, but each time she called, no slots were available. Desperate and worried, she finally borrowed $14,000 from her boyfriend’s mother to have the procedure done elsewhere last February.

When Noam Friedlander needed back surgery, she found that the surgeons who were covered by her insurance operated out of hospitals that were not—or vice versa:

Unable to match a hospital and a surgeon that were both covered, Friedlander started haggling between doctors for a cash price for the surgery. She chose a surgeon who wasn’t covered by her insurance but who operated in a hospital that was covered. … In the end, she had to take out two credit cards so she could pay $16,000 out of pocket.

The ACA’s defenders will argue that however flawed it may be, the system is an improvement over what came before. No one disputes that reform was needed. But the ACA fails to address the root cause of outpaced inflation at the point of service. It fails to address the medical school cartel and doctor shortages that push prices higher. It fails to repeal expensive employer mandates that drive health insurance (and health care) costs higher and incomes lower. It fails to deliver better tax treatment for out-of-pocket expenses or equal tax treatment for individual and employer plans.

In many cases it instead exacerbates these problems.

In short, it fails to take advantage of the myriad free market alternatives that might remediate the root causes of high health care costs and result in a truly better—and not just different—system.

_________________________

[1] I discovered this strange phenomenon in 2014. For the nine years prior to that, I had the same plan, which I had purchased myself in the individual market. It was cancelled at the end of 2013 due to the passage of the ACA. For several reasons (the unworkable website and my rebellious nature among them), in 2014, for the first time in my adult life, I went without heath insurance. I was pleasantly surprised to discover that office visits were $50-$60 lower once I had no insurance, and more expensive procedures, such as mammograms, were hundreds of dollars lower.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

The Glass Houses of the Anti-Science Left

The enlightened left loves to mock anti-science on the right. But guess what?

The pot is every bit as sooty as the kettle.

The political left in the U.S. harbors junk- and anti-science tendencies running strong as anything found on the right. From glass houses (recycled, natch!) in solid blue crunchvilles around the country, the left’s anti-science factions scoff at global warming “deniers,” blissfully blind to the power of their own superstitions.

It is not merely the chemophobia or the illogical fixation on things “all natural.” Never mind that everything on earth is made of chemicals—including kittens, oxygen, that homemade soap on Etsy, and every essential oil. Never mind it would take 14 bottles of store-bought shampoo to amass the amount of formaldehyde in just one apple (and cauliflower has even more). Never mind that arsenic, lead and hemlock are all natural.

I can overlook the dangerous predilection for “natural remedies,” the susceptibility to mythical conditions like “candida overgrowth,” or the willingness to pay extra for meat without nitrates that is actually more dangerous. All of these are largely phenomena of Prius-driving, Whole Foods-shopping raw pecan lovers. Regardless, the externalities these superstitions impose, while greater than zero, are within a range acceptable in a free society.

Let them buy all-natural snake oil from salesmen savvy enough not to incorporate.

The problem is that not all their superstitions are quite so harmless.

Genetically Engineered Food

Consider GMO foods. As compiled by Reason’s Ronald Bailey:

A 2004 report from the National Academy of Sciences (NAS) concluded that “no adverse health effects attributed to genetic engineering have been documented in the human population.”

In 2003 the International Council for Science, representing 111 national academies of science and 29 scientific unions, found “no evidence of any ill effects from the consumption of foods containing genetically modified ingredients.”

The World Health Organization flatly states, “No effects on human health have been shown as a result of the consumption of such foods by the general population in the countries where they have been approved.”

In 2010, a European Commission review of 50 studies on the safety of biotech crops found “no scientific evidence associating GMOs with higher risks for the environment or for food and feed safety than conventional plants and organisms.”

At its annual meeting in June, the American Medical Association endorsed a report on the labeling of bioengineered foods from its Council on Science and Public Health. The report concluded that “Bioengineered foods have been consumed for close to 20 years, and during that time, no overt consequences on human health have been reported and/or substantiated in the peer-reviewed literature.”

The science is in. The safety of GMO foods is as well established as evolution and clearer than man-made global warming.

Wonderful news! We can move forward with ameliorating hunger and saving lives around the world using foods like Golden Rice, genetically altered to carry a gene from carrots and intended to prevent the Vitamin A deficiency that kills 670,000 children under the age of five every year.

But superstitious anti-GMO activists have succeeded in escalating the testing requirements necessary to bring it to market and backed a campaign of vandalism against farmers with limited licenses to use it in the meantime. A study published in the Cambridge Journal of Environment and Development Economics calculated that delayed deployment of Golden Rice has cost 1,424,000 life years since 2002 in India alone.

Compared to that, young-earth creationism seems almost…science-y.

Renewable Energy

Fracking is safe, fossil fuels are efficient, and there is no credible path to replacing them without nuclear, the greenest of them all.

Biofuel contributes to global warming and would require stripping the planet. As for all the rest, the resources necessary to manufacture the components are about equal to the energy the technology is capable of producing. They never manage to do much more than break even in producing the amount of energy consumed in their own manufacture.

In other words, trying to replace fossil fuels with renewables “simply won’t work” because the energy requirements for manufacturing and maintaining solar panels, windmills and electric cars are too high.

Even if one were to electrify all of transport, industry, heating and so on, so much renewable generation and balancing/storage equipment would be needed to power it that astronomical new requirements for steel, concrete, copper, glass, carbon fibre, neodymium, shipping and haulage etc etc would appear. All these things are made using mammoth amounts of energy: far from achieving massive energy savings, which most plans for a renewables future rely on implicitly, we would wind up needing far more energy, which would mean even more vast renewables farms—and even more materials and energy to make and maintain them and so on. The scale of the building would be like nothing ever attempted by the human race.

In reality, well before any such stage was reached, energy would become horrifyingly expensive—which means that everything would become horrifyingly expensive… This in turn means that everyone would become miserably poor and economic growth would cease (the more honest hardline greens admit this openly).

“The most honest hardline greens” openly admitting that ending our reliance on fossil fuels would necessitate ending civilization as we know it? They’re the ones who understand the science.

The rest are just crossing their fingers while imposing “astronomical” costs on the rest of us.

Recycling

Reusable diapers are not more environmentally friendly than disposables. Curbside recycling doubles the number of fossil-fuel burning trucks required to pick up the same amount of garbage. There is no shortage of landfill capacity. Whether for the purpose of preserving sand or to prevent glass from returning to sand, there is no sound reason for spending $90 a ton recycling glass into other, different glass that can be sold for $10 a ton. For every remanufactured product that achieves net energy savings, there is another that results in a net energy loss.

There are recyclers who take the time—in between washing their garbage and line-drying those disposable diapers—to research each potential recyclable, investigate the programs in their locales, and reach reasonably scientific conclusions about which recycling efforts net a savings of natural resources. the-craft

Most don’t.

They’re not interested in scientific answers to these questions. They’re practicing a religion.

So while Democrats gaze down their all-naturally moisturized noses and snicker at the anti-science right, let us not forget that Democrats are more likely to believe in ghosts, significantly more likely to believe in fortune telling, and almost twice as likely to believe in astrology.

The walls of their recycled glass houses might be kept shiny with organic, handmade, all-natural, chemical-free, locally-sourced, artisan household cleaning products.

But those who live there still ought not throw stones.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Brandon Duncan May Do 25 to Life for Singing About a Gang

In 2013, San Diego experienced a rash of shootings.

Brandon Duncan is a San Diego musician. He has no criminal record. He is not alleged to have pulled the trigger, to have been present, to know who was present, or even to have known contemporaneously that the shootings had occurred. He is not alleged to have masterminded the murders, paid anyone to commit them, or otherwise aided in their commission.

Nevertheless, Duncan may wind up doing 25 years to life for the shootings.

The reason?

Sales of an album Duncan made in 2012 may have benefitted from a surge in gang stature and respect in the wake of the shootings. Whilst it may not have been one of the best-selling albums of all time, the upswing in sales was very strong.

Duncan apparently creates music about gang activities. As Kevin Boyd reports at IJ Review, the lyrics include one line about holding a gun with no safety and another about a full clip making someone’s top disappear. The tracks can be heard here.

In any case, creating music about violence and criminal activity is not illegal. That is Constitutional Law 101. The First Amendment protects freedom of expression, including violent content in music, literature, art, media, video games, etc.

Mario Puzo could not do 25-to-life if an upsurge in Mafia violence caused a renewed interest in his Godfather novels. He could not do 25-to-life even if prosecutors alleged that his books glamorized organized crime, thereby contributing to an increase in such activity.

That California does not attempt to prosecute authors like Puzo invites speculation that the state is discriminating against certain content and certain genres of art and its creators. Italian-American authors writing fiction novels about Mafia violence are acceptable. African-American musicians creating rap music about street gang violence are not.

Whether or not such speculation is justified, prosecutors claim that Duncan is not merely a musician creating unsavory content. They allege that Duncan is actually a member of a gang based in Lincoln Park, California.

Of course, it is also not illegal to belong to a gang.

That too is Constitutional Law 101. The freedoms of assembly and expression necessarily entail the right to free association. The State of California can neither prohibit Duncan from associating with the people of his choosing, nor punish him for doing so.

But there is yet another dot to connect. Duncan is being charged under a California penal statute purporting to make it a crime to “benefit from” the illegal activities of a “criminal street gang” in which one “actively participates:”

…[A]ny person who actively participates in any criminal street gang…, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity…, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.

According to NBC San Diego, prosecutors explain their theory of this offense as follows:

“If you are a documented gang member, and you benefit from or promote the activities of the gang, you can be held responsible for crimes the gang commits,” the district attorney said.

To be found guilty, prosecutors must prove the suspects are active gang members, that they had “general” knowledge of the gang’s activity and that they profited, assisted or benefited from the activities. The suspects do not have to be directly involved with the crime to be found guilty.

Those benefits could be economic, like album sales, or intangible, like respect, the district attorney argues.

Prosecutors are apparently presenting the aforementioned music lyrics, plus social media pictures, to demonstrate Duncan’s membership in the Lincoln Park gang. They further argue that the sales of his 2012 album benefitted from the 2013 shootings.

Duncan’s defense attorney, Brian Watkins argues that the songs are just artistic expression, and that while Duncan has associated with some members of the gang because he grew up in the same area, he is not himself a member. In an interview with NBC San Diego, Watkins had this to say:

“I mean, to imprison someone for 25 years to life because of artistic expression is something not even the worst communist regimes have done…”

The DA’s office counters that the law was passed by the voters and found constitutional by California’s Supreme Court. That decision was People v. Johnson (2013), wherein the Court analyzed ways in which Section 182.5 diverges from the traditional crime of conspiracy:

[T]raditional conspiracy requires both the specific intent to agree, and specific intent to commit a target crime. … A 182.5 conspiracy does not require any prior agreement among the conspirators to promote, further, or assist in the commission of a particular target crime.

The Court seemingly reassures itself that the intent requirement is replaced with a requirement of “active and knowing gang participa[tion] … with the … intent to promote, further, or assist in the commission of a felony by other gang members.” However, just two paragraphs later, the Court concedes that:

[S]ection 182.5 brings within its ambit not only a gang member who promotes, furthers, or assists in the commission of a felony. It also embraces an active and knowing participant who merely benefits from the crime’s commission, even if he or she did not promote, further, or assist in the commission of that particular substantive offense.

So Section 182.5 dispenses with the traditional intent requirement, replaces it with a requirement that the defendant have been an active and knowing participant in the gang (but not the crime), and then punishes the defendant for receiving any benefit, however intangible, from a crime committed by other members of the gang.

That sure sounds like doing 25 years to life for one’s unsavory associations.

Long-standing criminal statutes already address racketeering, commission of or participation in, conspiracy to commit, or aiding and abetting a crime. What is the need for this particular statute other than to prosecute someone who cannot be demonstrated to have violated those traditional criminal statutes?

Ken White at Popehat reached out to the San Diego District Attorney’s office and reports that:

* The DA’s theory is that Duncan promoted the gang by writing rap music about gang activity, and that he received an “intangible benefit” – their words – by his music becoming more credible or popular. The DA did not present any evidence that the gang’s crimes had any impact on album sales.

* The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs. But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.

* The DA’s theory is that when a gang commits a crime all members of the gang automatically benefit for purposes of Section 182.5. That theory, if accepted, would effectively eliminate one of the elements of the crime so that the DA would no longer need to prove that any individual gang member “willfully promotes, furthers, assists, or benefits from” the criminal activity.

In short, based at least on reports of their stance at the prelim, the DA seems to be saying that Duncan violated the statute by being a member of the gang and by rapping about the gang.

In the meantime, Duncan said on an interview with CNN that the studio is his “canvas” and that he would love to continue to make music, but:

“[T]hese people have you scared to do anything around here.”

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

Defense of Charlie Hebdo Must Be Absolute

I support the right to publish offensive things without limitation, qualification or exception.

There is no “but.”

Defense of the right to satire unmolested by violence and coercion must be absolute, unequivocal and unqualified.

There can be no “but.”

There can be no “but” because one man’s outrage is another man’s art.

Just ask Serhat Tanyolacar.

This image was published by The Onion on September 13, 2012, under the headline "No One Murdered Because of This Image."

This image was published by The Onion on September 13, 2012, under the headline “No One Murdered Because of This Image.”

The image to the right may, at first glance, be seen as an insult to the religions whose figures are depicted. Upon second glance, we might see in context that the image pays compliment to those religions, while the insult is instead to the one whose Prophet was omitted.

Vulgarity in satire becomes provocative think piece.

The same Charlie Hebdo images deemed racist by some are interpreted as mocking racism by others. There is no right or wrong answer. Subjectivity is inescapable; offensiveness being in the eye of the beholder, the only way to avoid it is not to speak at all.

A Charlie Hebdo cover: "If Muhammad returned."

A Charlie Hebdo cover: “If Muhammad returned.”

I find some of Charlie Hebdo’s images grotesque and unpalatable, others almost touchingly sweet. I interpret the one on the left as a defense of Islam against those who would distort it with their violence, and the one below as a heartfelt insistence that our common humanity will prevail over all differences.

Others will look through the lens of their own perspective, find different meaning in the same images, and take offense or not accordingly.

It changes nothing.

There can be no “but” because freedom has no meaning if we censor ourselves based on the dictates of any conscience but our own.

A Charlie Hebdo cover: "Love is more powerful than hate."

A Charlie Hebdo cover: “Love is more powerful than hate.”

Freedom left politely unused cannot be shown to exist, and courtesy and restraint become the foundation on which we build our own cages.

The battle between those who would be free and those who would be reverent is not between different races and religions, between east and west, or between nation-states. It is a battle between those who love freedom, in all its messy, imperfect glory, and those who would spill blood in pursuit of their own personal utopia.

We must never fail to love our liberty more than they hate it.

Those who qualify their defense of freedom with any “but”—but we ought not mock religion; but we ought mind our own prejudices and hypocrisies; but we ought not be surprised when the profane elicits violence—are trying to straddle a fence that cannot sustain the mighty weight of such freedom.

There can be no “but,” because the stakes are too high.

A war not fought with words and ideas, however cutting, will be fought instead with drones and bombs. Rewarding the murder of satirists with suppression of images, rather than publication of a thousand more, foregoes the peaceful power of the Streisand Effect in favor of enhanced interrogation.

Those who would be free, of every race, religion or nationality, must form a circle of defense around the indefensible. We must give rein to that rebellious voice inside that whispers, If you tell me I must not do something, I will do it to prove I can. We must value freedom over respect, not just when it is tasteful and without cost, but always.

Every. Time.

It is where we stand in the hard cases that defines us.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.

NYC Cop Rebellion Highlights Complicated Interplay Between Freedom and the Rule of Law

Some laws are so egregious they ought morally be resisted, however destabilizing such resistance might be. Only the most mindlessly authoritarian would disagree.

The hard part is knowing where to draw the lines.

New York City cops are in rebellion, taking a de facto hiatus from policing victimless “crimes.” Whether this is an “important step” toward improved safety and constitutional policing, or a dire threat to the rule of law, seems all a matter of perspective. Cops being as diverse as humans generally, their motivations presumably range from “[a]cting like a bunch of high-school jocks protesting a ban on keg parties” all the way to heartfelt questions about the legitimacy of a system that leaves a man dead for the “crime” of selling loose cigarettes.

Either way, the reduced issuance of petty crime summonses and parking violations will starve the city of revenue, while endangering no one. This strategy, of hurting the mayor’s budget without turning a blind eye to real crime, exposes an unpleasant truth about modern policing: that cops are sent out armed with guns to risk their lives ginning up revenues needed to cover budget shortfalls.

Let that sink in.

I understand the importance of the rule of law. But morality dictates consideration of a system that encourages forceful interaction over such trivialities as selling loose cigarettes, and for the purpose of insulating politicians from the consequences of overspending.

The rule of law is but a means to an end, not an end in itself.

A provocative law review article entitled “The Myth of the Rule of Law” asks the reader to consider the following:

“Congress shall make no law . . . abridging the freedom of speech, or of the press; . . . .”

On the basis of your personal understanding of this sentence’s meaning (not your knowledge of constitutional law), please indicate whether you believe the following sentences to be true or false.

_____ 1) In time of war, a federal statute may be passed prohibiting citizens from revealing military secrets to the enemy.

_____ 2) The President may issue an executive order prohibiting public criticism of his administration.

_____ 3) Congress may pass a law prohibiting museums from exhibiting photographs and paintings depicting homosexual activity.

_____ 4) A federal statute may be passed prohibiting a citizen from falsely shouting “fire” in a crowded theater.

_____ 5) Congress may pass a law prohibiting dancing to rock and roll music.

_____ 6) The Internal Revenue Service may issue a regulation prohibiting the publication of a book explaining how to cheat on your taxes and get away with it.

_____ 7) Congress may pass a statute prohibiting flag burning.

After exploring ways in which seemingly clear rules of law are malleable to reach different ends, based on the perspective of those with the power to apply them, the piece returns to those initial questions:

If your response to question one was “True,” you chose to interpret the word “no” as used in the First Amendment to mean “some.”

If your response to question two was “False,” you chose to interpret the word “Congress” to refer to the President of the United States and the word “law” to refer to an executive order.

If your response to question three was “False,” you chose to interpret the words “speech” and “press” to refer to the exhibition of photographs and paintings.

If your response to question four was “True,” you have underscored your belief that the word “no” really means “some.”

If your response to question five was “False,” you chose to interpret the words “speech” and “press” to refer to dancing to rock and roll music.

If your response to question six was “False,” you chose to interpret the word “Congress” to refer to the Internal Revenue Service and the word “law” to refer to an IRS regulation.

If your response to question seven was “False,” you chose to interpret the words “speech” and “press” to refer to the act of burning a flag.

Why did you do this? Were your responses based on the “plain meaning” of the words or on certain normative beliefs you hold about the extent to which the federal government should be allowed to interfere with citizens’ expressive activities?

My own answer would have been that the First Amendment neither permits nor prohibits anything. The First Amendment is nothing more than words on paper, incapable of doing anything. It is only our collective willingness to enforce, expand or modify it that has any function; that sufficient numbers of us agree, consciously or not, to permit the exercise of collective force to do one or the other; and that sufficient numbers more passively do not resist.

We are unavoidably a nation of both laws and men, and needed change comes in many forms. Sometimes it comes because democratically elected representatives vote for it. Sometimes it comes because one person stops allowing her complicity to lend legitimacy to a bad law.

It bears remembering that enforcing the rule of law was what five New York City officers were doing when they placed Eric Garner in a grapple hold for the “crime” of selling loose cigarettes. As Professor Stephen L. Carter eloquently wrote:

It’s unlikely that the New York legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.

*    *     *

Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate.

That’s too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is… : Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.

Some of the loudest complaints about police misconduct are from the same people who demand a leviathan government exercising control over vast areas of our lives. Such control must of necessity be exercised in the form of laws, laws that must be enforced at the point of a gun.

We all draw lines somewhere, between the laws we think ought be enforced, however misguided they might be, for the sake of preserving the legitimacy of the system; laws so egregious and vile in nature, that they must morally be resisted; and those that fall somewhere between, the close calls and grey area where good faith disagreement can be tolerated. The criteria we use, the lines we draw, are inherently subjective.

We should not ask cops to enforce laws that we are unwilling to have them kill to enforce. We should not risk lives enforcing prohibitions against victimless crimes.

If a rebellion by New York City cops is how this change comes—I can live with that.

Sarah Baker is a libertarian, attorney and writer. She lives in Montana with her daughter and a house full of pets.
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