[CCWG-ACCT] Board comments on the Mission statement

David Post david.g.post at gmail.com
Mon Nov 23 23:25:32 UTC 2015


Here's my crack at the restrictive language that 
should be included.  I tried to leave the the 
statement in the current draft as is, but made 
several additions to it that hopefully cover the 
things some of us are very concerned about.

The language below is all from the latest draft, 
except for the added language IN ALL CAPS:


***************
The Mission of The Internet Corporation for 
Assigned Names and Numbers is to ensure the 
stable and secure operation of the Internet's 
unique identifier systems as described below. Specifically, ICANN:

1. Coordinates the allocation and assignment of 
names in the root zone of the Domain Name System 
("DNS"). In this role, ICANN’s Mission is to 
coordinate the development and implementation of policies:

For which uniform or coordinated resolution is 
reasonably necessary to facilitate the openness, 
interoperability, resilience, security and/or 
stability of the Domain Name System;

That are developed through a bottom-up, 
consensus-based multi-stakeholder process and 
designed to ensure the stable and secure 
operation of the Internet’s unique names systems. . . .

ICANN shall act strictly in accordance with, and 
only as reasonably appropriate to achieve its Mission.

ICANN shall not (a) impose regulations on 
services (i.e., any software process that accepts 
connections from the Internet) that use the 
Internet’s unique identifiers, or the content 
that such services carry or provide, OR (B) 
IMPOSE -- DIRECTLY OR INDIRECTLY -- CONTRACTUAL 
OBLIGATIONS OR CONDITIONS ON THE CONDUCT OR 
BEHAVIOR OF DOMAIN NAME REGISTRANTS, EXCEPT TO 
THE EXTENT THAT (1) THE DOMAIN NAME REGISTRATION 
IS CAUSING HARM TO THIRD PARTIES OR (2) THE 
CONDUCT OR BEHAVIOR IS CAUSING HARM TO THE STABLE 
AND SECURE OPERATION OF THE DOMAIN NAME SYSTEM.

lCANN shall have the ability to negotiate, enter 
into and enforce agreements with contracted parties IN SERVICE OF its Mission.

************************


The language added above attempts to rein in 
ICANN's ability to "regulate" things other than 
the registration and allocation of names. So, for 
instance, insofar as a TLD has been designated to 
have a particular meaning (to imply certain 
characteristics of those who register in that 
domain - e.g. *.pharmacy or *.bank ), ICANN can 
legitimately impose contractual conditions on 
registrants to satisfy those characteristics, 
because otherwise the registration of the name is 
misleading and can potentially cause harm.  At 
the same time (to use Bruce's earlier example) 
ICANN cannot impose contractual 
conditions/obligations on whomever has registered 
computer.expert (or davidpost.org) regarding the 
use of Apple's trademarks, because in that case, 
while there might well be harm (to Apple), the 
harm does not flow from the registration of the 
domains computer.expert or davidpost.org, nor is 
it the kind of harm that somehow threatens the 
stability or security of the DNS.

David



d


At 04:18 PM 11/23/2015, Burr, Becky wrote:

>First, I believe that Registrars agreed to this 
>provision in the course of negotiations.  While 
>I would like a mechanism for contracted parties 
>to challenge ICANN’s “take it or don’t 
>sign” negotiating ultimatums, this doesn’t 
>fall into that bucket as far as I am 
>concerned.  And I agree with the general 
>principle that contracts should be enforceable by the parties to the agreement.
>
>Beyond that, the language of 3.18 in question 
>imposes obligations on registrars – maintain an 
>abuse pooint of contact, investigate allegations 
>regarding illegal activities, take appropriate 
>action, so I don’t think that amounts to 
>regulating registrants.  I also agree that there 
>are situations in which illegal activity could 
>impact the stability and security of the 
>Internet’s unique identifiers (e.g., 
>particularly involving malicious DNS exploits, 
>etc.), so the provision seems to me to be 
>appropriate in furtherance of ICANN’s Mission.
>
>The problem, of course, is that not all illegal 
>activity threatens the stability and security of 
>the DNS; behavior that is illegal in some 
>jurisdictions is not illegal in all 
>jurisdictions;  and the legality/illegality of a 
>particular activity is generally a determination 
>left to sovereigns or courts.  So, what 
>constitutes an “ appropriate response” is 
>going to vary from case to case.  Theoretically, 
>ICANN could choose to enforce the requirement in 
>a manner that exceeded the scope of its 
>authority, e.g., it could begin to say that 
>registrars who do not suspend registrations in 
>response to allegations that an underlying site 
>is defamatory are in breach.  But I think 3.18 
>itself is a legitimate contract provision that ICANN should be able to enforce.
>
>J. Beckwith Burr
>Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
>1775 Pennsylvania Avenue NW, Washington D.C. 20006
>Office: +1.202.533.2932  Mobile: +1.202.352.6367 
>/ <http://www.neustar.biz>neustar.biz
>
>From: <Silver>, Bradley 
><<mailto:Bradley.Silver at timewarner.com>Bradley.Silver at timewarner.com>
>Date: Monday, November 23, 2015 at 2:37 PM
>To: Becky Burr 
><<mailto:becky.burr at neustar.biz>becky.burr at neustar.biz>, 
>David Post <<mailto:david.g.post at gmail.com>david.g.post at gmail.com>
>Cc: Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca>, 
>Greg Shatan 
><<mailto:gregshatanipc at gmail.com>gregshatanipc at gmail.com>, 
>"Mueller, Milton L" 
><<mailto:milton at gatech.edu>milton at gatech.edu>, 
>Accountability Community 
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
>
>Thanks Becky,
>
>The question is not whether ICANN’s authority 
>to enforce policies regarding resolutions of 
>domain name disputes can be stretched to 
>websites, the question is whether under the RAA, 
>ICANN can validly require registrars to maintain 
>an abuse contact and take certain steps in 
>response to reports of Illegal Activity – which 
>is defined to include conduct involving use of a 
>Registered Name.   Putting aside the issue of 
>defamation and infringement etc, let’s assume 
>for a moment that the Illegal Activity in 
>question is not inherent in the domain name 
>itself but rather involves the use of the name, 
>either directly or indirectly.  And let’s 
>further assume that such use is something that a 
>reasonable person might argue impacts ICANN’s 
>ability to ensure the stable and secure 
>operation of the Internet's unique identifier 
>systems.  I had thought that the language we 
>were searching for would permit ICANN to act in 
>those circumstances.  Unless you are you taking 
>the position that we know all we need to know 
>today about what those circumstances might be, 
>and whether ICANN’s activity could be impinged 
>by the language we have been discussing, then 
>you must acknowledge that we are doing brain 
>surgery in the dark here by trying to constrain 
>ICANN’s mission with language that has imprecise meaning.
>
>Bradley
>
>
>
>From: Burr, Becky 
>[<mailto:Becky.Burr at neustar.biz>mailto:Becky.Burr at neustar.biz]
>Sent: Monday, November 23, 2015 1:38 PM
>To: Silver, Bradley; David Post
>Cc: Alan Greenberg; Greg Shatan; Mueller, Milton 
>L; Accountability Cross Community
>Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
>
>Bradley,
>
>3.7.7.9 speaks about the registration and use of 
>a “Registered Name.”  A "Registered Name" 
>refers to a domain name within the domain of a 
>gTLD
about which a <gTLD Registry Operator (or 
>an Affiliate or subcontractor thereof engaged in 
>providing Registry Services) maintains data in a 
>Registry Database, arranges for such 
>maintenance, or derives revenue from such 
>maintenance.”  To me, that refers to 
>registration and use of a string, and not a web site.
>
>That is also consistent with the registrar form 
>of the “picket fence," which allows ICANN to 
>unilaterally obligate registrars to comply with 
>policies (a) covering specific topics and (b) 
>developed in accordance with specified 
>procedures designed to ensure that they are 
>supported by consensus.  The RAA spec (Section 4 
>of the 2001 RAA and Spec 4 in the 2013 RAA) 
>covers policies regarding resolution of disputes 
>regarding the registration of domain names (as 
>opposed to the use of such domain names, but 
>including where such policies take into account 
>use of the domain names.)   So, under the 
>Registrar’s form of picket fence, if ICANN has 
>developed a Consensus Policy that covers 
>resolution of disputes about registrations 
>(e.g., the UDRP, the Rapid Suspension policy, 
>etc.), and that policy takes use into account 
>(I.e, in the case of the UDRP for example, 
>registration of a name “in bad faith” as 
>defined in the UDRP), it is within ICANN’s authority.
>
>The question is, could ICANN’s authority to 
>enforce policies regarding resolution of 
>disputes regarding the registration of domain 
>names be stretched to construe use of a web site 
>(as opposed to the string itself) for 
>defamation?  I agree with David, I "don't think 
>they have that power at present, I don't think 
>they have had that since the beginning of 
>(ICANN) time, and I sure as heck don't want to 
>them to have it once they are in control of the 
>root and USG oversight is removed.”
>
>Becky
>
>J. Beckwith Burr
>Neustar, Inc./Deputy General Counsel & Chief Privacy Officer
>1775 Pennsylvania Avenue NW, Washington D.C. 20006
>Office:+1.202.533.2932  Mobile:+1.202.352.6367 
>/<http://www.neustar.biz>neustar.biz
>
>From: <Silver>, Bradley 
><<mailto:Bradley.Silver at timewarner.com>Bradley.Silver at timewarner.com>
>Date: Monday, November 23, 2015 at 11:47 AM
>To: David Post <<mailto:david.g.post at gmail.com>david.g.post at gmail.com>
>Cc: Becky Burr 
><<mailto:becky.burr at neustar.biz>becky.burr at neustar.biz>, 
>Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca>, 
>Greg Shatan 
><<mailto:gregshatanipc at gmail.com>gregshatanipc at gmail.com>, 
>"Mueller, Milton L" 
><<mailto:milton at gatech.edu>milton at gatech.edu>, 
>Accountability Community 
><<mailto:accountability-cross-community at icann.org>accountability-cross-community at icann.org>
>Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
>
>There is a difference between ICANN having power 
>to “enforce local laws”, as you put it, and 
>ICANN’s ability to enforce its agreements, 
>which have as a reference point, the conduct of 
>“illegal activity” via an indirect use of a 
>domain name.    Let’s be very clear – we are 
>talking about the latter; the question of 
>whether the enforcement of specific provisions 
>on their face, would amount to the kind of 
>regulation you and others would like to see 
>prohibited.  There are a number of forms that 
>enforcement could take which don’t make ICANN 
>a proxy for local law enforcement.   For 
>example, one manifestation of this concept is in 
>RAA 3.18.1, which talks about the maintenance of 
>an abuse contact for reports of illegal 
>activity, which will trigger an obligation to 
>investigate and respond appropriately.   RAA 
>3.7.7.9 is a logical companion to this 
>provision, since it ensures that registrars are 
>able, in accordance with their own terms of 
>service, to address abuse complaints involving 
>illegal activity, as between them and the 
>registrant involved.   We know there is a 
>broader discussion about what that should 
>entail, but I am concerned that the language 
>being proposed to prohibit any “direct or 
>indirect” regulation will be used to argue 
>that these contractual provisions are outside 
>ICANN’s mission on their face.
>
>From: David Post 
>[<mailto:david.g.post at gmail.com>mailto:david.g.post at gmail.com]
>Sent: Monday, November 23, 2015 11:22 AM
>To: Silver, Bradley
>Cc: Burr, Becky; Alan Greenberg; Greg Shatan; 
>Mueller, Milton L; Accountability Cross Community
>Subject: RE: [CCWG-ACCT] Board comments on the Mission statement
>
>
>Well, this is illuminating ...
>
>I take it that at least you and Greg (and 
>perhaps others) think that it is within ICANN's 
>power to enforce, via its power over the DNS 
>entries, local pornography laws, or consumer 
>protection laws, or defamation laws, or ... on 
>the grounds that registrants have to promise not 
>to infringe any rights of any third parties in 
>any activity they undertake "on the website to 
>which the domain points."  So ICANN can set up a 
>Pornography Dispute Resolution Procedure, a 
>Consumer Protection Dispute Resolution 
>Procedure, a Defamation Dispute Resolution 
>Procedure, to enforce these promises that 
>registrants have supposedly made and to take down violators.
>
>My response is:  I don't think they have that 
>power at present, I don't think they have had 
>that since the beginning of (ICANN) time, and I 
>sure as heck don't want to them to have it once 
>they are in control of the root and USG oversight is removed.
>
>David
>
>
>At 10:51 AM 11/23/2015, Silver, Bradley wrote:
>
>
>David,
>
>That̢۪s an overly narrow reading of RA RAA 
>3.7.7.9 Â - its not only that the registration 
>of the Registered Name infringes or its 
>“direct useâ€, but also that the manner in 
>which is indirectly is used.  I can’t see 
>how the “i€œindirect” use of the domain 
>cannot also be attriibuted to infringing uses on 
>the website to which the domain points. Â If 
>that’s not at least an “ind¬Å“indirect” 
>use, I don’t know what is.   ‚  While I 
>agree with your conclusion, I don̢۪t agregree 
>with the reasoning, and I expect there are 
>others (like Milton) who would like to see the 
>clear meaning of the language of 3.7.7.9 changed 
>through the application of the “no regulation” sentence.Â
>br>
>Bradley
>
>From: David Post [ mailto:david.g.post at gmail.com]
>Sent: Monday, November 23, 2015 10:37 AM
>To: Burr, Becky
>Cc: Alan Greenberg; Silver, Bradley; Greg 
>Shatan; Mueller, Milton L; Accountability Cross Community
>Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
>
>At 10:03 AM 11/23/2015, Burr, Becky wrote:
>
>
>Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
>
>No, I don't think this was out of scope, because 
>it concerns the "registration" of the name and 
>the manner in which THE NAME is used.  3.7.7.9 
>does not say, in my opnion, that the registrant 
>has to promise that it is not doing anything at 
>a website that is infringing; the promise is 
>that the name is not being used in an infringing manner.
>
>D
>
>At 10:03 AM 11/23/2015, Burr, Becky wrote:
>
>
>Are we seriously arguing that RAA 3.7.7.9 is outside the picket fence?
>
>Section 3.7.7.9 of the RAA has been in place 
>from the beginning of time.  Here is the language from the 2001 RAA:
>3.7.7.9 The Registered Name Holder shall 
>represent that, to the best of the Registered 
>Name Holder's knowledge and belief, neither the 
>registration of the Registered Name nor the 
>manner in which it is directly or indirectly 
>used infringes the legal rights of any third party.
>Here it is in the 1999 RAA:
>7. g. The SLD holder shall represent that, to 
>the best of the SLD holder's knowledge and 
>belief, neither the registration of the SLD name 
>nor the manner in which it is directly or 
>indirectly used infringes the legal rights of a third party.
>
>As someone who was part of the team drafting and 
>negotiating the 1999 RAA, I can assure you that 
>the inclusion of this requirement in the RAA was 
>intended to be within the scope of ICANNâ€â„„¢s Mission.
>
>
>J. Beckwith Burr
>Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer
>1775 Pennsylvania Avenue NW, Washington D.C. 20006
>Office: +1.202.533.2932  Mobile: +1.202.352.6367 
>/ <http://www.neustar.biz>neustar.biz
>
>From: Alan Greenberg 
><<mailto:alan.greenberg at mcgill.ca>alan.greenberg at mcgill.ca >
>Date: Sunday, November 22, 2015 at 10:06 PM
>To: "Silver, Bradley" 
><<mailto:Bradley.Silver at timewarner.com> 
>Bradley.Silver at timewarner.com>, Greg Shatan 
><<mailto:gregshatanipc at gmail.com>gregshatanipc at gmail.com  
> >, "Mueller, Milton L" <<mailto:milton at gatech.edu>milton at gatech.edu>
>Cc: Accountability Community 
><<mailto:accountability-cross-community at icann.org> 
>accountability-cross-community at icann.org>
>Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
>
>I rarely fill people's mailboxes just to do this, but in this case;
>
>+1
>
>Alan
>
>
>At 22/11/2015 08:31 PM, Silver, Bradley wrote:
>
>
>I want to echo and support Greg’s 
>resposposponse below. sp; Milton’s 
>position that an en existinting pr provision of 
>the RAA is out of the scope of 
>ICANNâ€Ã¢Ã¢„¢s mission is 
>illuminating. sp; I had beenn operating on the 
>(hopeful) presumption that what we were 
>attempting to do was find a way to describe 
>ICANN’s missionion in a manner that 
>refleflects its cu current activities, and avoid 
>drafting anything that could adversely impact 
>its continued ability to do so while clearly 
>preventing any undue expansion.   If those who 
>support the language in the second sentence are 
>seeking a way to attack the validity or 
>enforceability of existing contractual 
>provisions, then the concerns of the board are 
>not only well founded, they are grossly understated.
>
>From: 
><mailto:accountability-cross-community-bounces at icann.org>accountability-cross-community-bounces at icann.org 
>[ 
>mailto:accountability-cross-community-bounces at icann.org] 
>On Behalf Of Greg Shatan
>Sent: Sunday, November 22, 2015 3:01 AM
>To: Mueller, Milton L
>Cc: Accountability Cross Community
>Subject: Re: [CCWG-ACCT] Board comments on the Mission statement
>
>Milton,
>
>I strongly disagree that 3.7.7 is out of scope 
>of ICANN's mission.  I also don't think it's 
>useless, nor is it an uncommon provision in many 
>terms of service and similar agreements.  3.7.7 
>only asks for the registrant's "knowledge and 
>belief" -- so they are not required to know 
>whether they are infringing anywhere under any 
>jurisdiction.  They are only required to make 
>reference to what they already know -- an 
>entirely reasonable and ordinary requirement.
>
>Is it your intent that the new provision we are 
>discussing places 3.7.7 out of scope, and thus 
>serves as a basis for an IRP or other challenge 
>seeking to nullify 3.7.7?  Since 3.7.7 is only 
>an "example," what other sections are you trying to place out of scope?
>
>Thanks.
>
>Greg
>
>On Sat, Nov 21, 2015 at 5:56 PM, Mueller, Milton 
>L <<mailto:milton at gatech.edu>milton at gatech.edu> wrote:
>
>
> > -----Original Message-----
> >
> > See section 3.7.7 of the registrar accreditation agreement (RAA):
> > 
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_pages_approved-2Dwith-2Dspecs-2D2013-2D09-2D17-2Den&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=11R4XkcvGwOIsQkhhyE47Z7B829g9E2Cip1amJSBQu0&s=5ThaiusaRSYwZuxG3vlUf8hTsMh251yjw_-T7i4DOFg&e=>https://www.icann.org/resources/pages/approved-with-specs-2013-09-17-en 
>
> >
> > 3.7.7.9 The Registered Name Holder shall represent that, to the best of the
> > Registered Name Holder's knowledge and belief, neither the registration of
> > the Registered Name nor the manner in which 
> it is directly or indirectly used
> > infringes the legal rights of any third party.
>
>Bruce: this is a good example of how the RAA is 
>currently out of scope. To begin with, it is a 
>completely useless element of the RAA. This 
>statement does not stop anyone from doing 
>anything, and it does not require ICANN to 
>determine whether a registrant is infringing 
>someone's rights. And how is anyone supposed to 
>know whether the way they use a domain infringes 
>the legal rights of a third party - anywhere in 
>the world, under any jurisdiction?  They cannot 
>know this until and  unless someone asserts 
>those rights against them in a legal system 
>which has jurisdiction and can make a legal 
>determination. Or do we want ICANN to be making 
>this determination? Most would agree that we do 
>not. So what is the purpose, other than to 
>invite ICANN to impose controls or regulations 
>on virtually anything that happens on the internet?
>
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><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>http://www.washingtonpost.com/people/david-post
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>music 
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>publications 
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>*******************************
>David G Post - Senior Fellow, Open Technology Institute/New America Foundation
>blog (Volokh Conspiracy) 
><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.washingtonpost.com_people_david-2Dpost&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=sFIVEVRa4d2-50iBD-equxjw7XvbBhYdWLFew_7kOTA&e=>http://www.washingtonpost.com/people/david-post
>book (Jefferson's 
>Moose) 
><https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_c327w2n-25A0-25A0-25A0-25A0-25A0-25A0-25A0&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=ywg8uVPfTYGqvglA4unTV31GGxchC7v0aAGWrgZkGwI&e=>http://tinyurl.com/c327w2n 
>
>music 
><https://urldefense.proofpoint.com/v2/url?u=http-3A__tinyurl.com_davidpostmusic-25A0&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=-Riw1v0au2L-2i3gFKAtEkYl56nN9CXxfpAuLQLoMGo&e=>http://tinyurl.com/davidpostmusic 
>publications 
>etc. 
><https://urldefense.proofpoint.com/v2/url?u=http-3A__www.davidpost.com-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B-26nbsp-3B_&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=q0We23gB15IOvlVyCxS70PlyFWr7jiJPtk5hUAwJ4-o&s=lr-1bErJrSUdw4bKPYQHlyQJnyZmCN5O3BLA8oN7OPY&e=>http://www.davidpost.com 
>
>*******************************
>
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*******************************
David G Post - Senior Fellow, Open Technology Institute/New America Foundation
blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post
book (Jefferson's Moose)  http://tinyurl.com/c327w2n
music 
http://tinyurl.com/davidpostmusic  publications 
etc.  http://www.davidpost.com
*******************************  
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