(Pix © Larry Catá Backer 2016)
At least since the Second World War American elites, as successors to and in concert with their Western European comrades, have sought to control the conversation about democracy, democratic legitimacy, and the appropriate forms within which states might structure their internal governance, especially when it relates to the ease with which Euro-American elites might penetrate these subordinate states. Though media outlets that by turn pander to and are the means through which well pedigreed elites manage these conversations internally (to set the tone for and the boundaries of permissive conversations) and externally (to control the interpretive community through which terms like democracy, rule of law, transparency, and the like are understood and applied) these elites determine what passes for legitimate and illegitimate approaches to those norms within national and international communities.
And all the better when elites can play holier than thou when speaking down to their "pupils"--those states (and their elites) that must be overseen to ensure that they apply the "right" kind of democratic structures to their own states and political orders. And there is advantage when such elites chastise their pupils publicly, lovingly and out of great concern, when they stray. That public chastisement serves as a warning to other depedents that might be considering similar "misbehavior". And these inferior though eager-to-learn dependent states must be disciplined whenever they seek to protect their own interests in ways that interfere with those ideals that American elites would like to project outwards.
But what does all of this mean in plain speak--the language that can be understood (or at least better tolerated now) among those who still read?
This post considers an example of this tendency and points to some reasons why these exercises are sadly hypocritical (hardly a criticism in politics) but also inconsistent with policy and theory that stands at the core of U.S. policy. What it suggests is that theory applies on a two track model. What is permitted to the most powerful states is denied their dependent "partners" and that miscellaneous group of states that are dependent either on the most developed states directly or indirectly through international financial institutional arrangements. It gives further evidence to a suggestion made several years ago about the shape of globalized political orders emerging from out of the structures of economic globalization which is itself now almost a generation old (see here).
I start with the catalyst for this, a recent editorial authored by the editors of the Washington Post (A Danger to Israeli Democracy (January 2, 2015)), consider the Israeli version, and then place that within traditional normative principles of sovereignty, state equality and transparency. In each case, the criticism fails, and indeed advances only the weakening of sovereign power to protect the integrity of its political order against foreign states which seek to leverage influence through NGOs. Though the criticism of strengthening transparency ought to fail--there is a large space still open for criticism of its implementation. That valuable criticism gets lost in the general shaming, the overwrought language of democratic legitimacy and the all too obvious sub text that this move thwarts European and American efforts to influence Israeli politics from the inside in ways that might otherwise cause a bit of a furor were the tables turned, even in a context in which there was no question of transparency (see e.g., here, and here). I suggest the extent of the difficulty of such criticism from the United States by a reminder of the scope and objectives of the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611 et seq.
The editorial published by the Washington Post, A Danger to Israeli Democracy (January 2, 2015), had as its object the shaming of (dependent) Israeli elites into dropping a new and quite controversial law that would require disclosure (perfectly reasonable) and identification (some reasonable and some ridiculous, mean and and childish) by NGOs whose funding is derived from foreign governments. The shaming technique is fairly obvious--smearing the Israeli effort with the anti-democratic offal which is the dismissive analysis of Chinese and Russian efforts (which may well, in their own rights, and in their own constitutional contexts merit strong engagement see, e.g., here and here). Here is the editorial in full:
The Washington Post
By Editorial Board January 2 at 7:07 PM
ISRAEL, SURROUNDED not only by threats to its existence but also by governments and movements that practice tyranny, is a stubbornly free society. While its democracy is imperfect and rowdy, the bedrock commitment has remained during years of intense conflict. That commitment is precisely why Israel’s parliament should reject proposed legislation that would stigmatize nongovernmental organizations that receive funding from overseas. The proposal reflects the kind of tactic that Russia and China have employed to squelch dissent, and it is not in keeping with Israel’s core values as a democratic state.
The proposed law, introduced by Justice Minister Ayelet Shaked, was approved by a cabinet committee Dec. 27 and sent to the Knesset, where it faces additional debate and votes. It would apply to those organizations that receive more than half their funding from “foreign government entities.” The groups would be required to identify themselves as principally funded from overseas in any public communications and in interactions with government officials, and they would have to list the sources of funding in reports. Members of the groups would also be required to wear a special badge when present in the Knesset, with their name and the name of the NGO. This is now a requirement of lobbyists. Violations could result in stiff fines.
Ms. Shaked has advertised the legislation as providing more transparency, but that is not the real agenda. In fact, the legislation is aimed at delegitimizing progressive groups in Israel that have long been advocates for human rights and opposed to Jewish settlements in the West Bank, such as Peace Now, B’Tselem, the New Israel Fund and others. The reality is that many of these progressive groups rely on such funding from foreign organizations, and the law would force them to carry an unpleasant label suggesting that they are somehow at odds with Israel’s interests. Millions of dollars are also being sent to Israel to support right-wing causes such as settlement activity, but it comes largely from individual donors, not governments, so it would not be covered by the law. Israel’s nongovernmental organizations are already required, under an earlier law, to file disclosure reports of their funding, so the only effect of the new requirement would be to force them to wear a public badge in a way that is odious.
President Vladimir Putin of Russia has made NGO groups register as “foreign agents,” as if they were enemies of the state. In China, the new restrictions on nongovernmental organizations will forbid support from abroad and give oversight to the security apparatus. In both cases, dissent is being purposefully silenced, and valuable services will be denied to people who need them. Israel should not allow itself to be lumped with these regimes.
Israel’s democracy has been a pillar of strength through years of siege. It is not always easy to tolerate or defend groups that criticize the state or those in power, but allowing them to function normally is an important test of democracy, and, ultimately, the mark of an open and free society.
The editorial is problematic on its own terms. The implication that the adoption of the Foreign NGO law would doom Israeli democracy is both overwrought and might be understood as a threat--made indirectly by American political elites through the medium of a well read news source. It is in this sense a reminder that the Americans have a substantial say in whether the Israeli political system is deemed legitimate, and on that basis, whether the U.S. will contribute to the global movement to de-legitimate both the State of Israel and its government--now conflated through the antics of the Foreign NGO law. These are fair political tactics, but they advance subterfuge when dressed up in an editorial of this sort. This is an irony that is lost on the editorial board, and lost precisely because this is meant to be be understood as a threat and to define the stakes clearly and in the first paragraph of the editorial. That is nicely done through the conflation of the Israeli efforts with those of Russia and China--two systems that are as distinct form each other as they are from Israel. But the resort to variations of a Foreign NGO Law dissolves difference--in those variations as well as in the systems that produced them. And it is done not to smear the legitimacy of either the Russian or Chinese system but as a bit of ideological criticism that is a necessary element of the punch delivered against the Israeli effort.
The editorial is horrified that the Israelis would introduce, and might enact--a bill that would require more stringent disclosures of the sources of NGO income when sourced in foreign governments. First, the editorial board suggests, Israel already has some sort of disclosure structure--and that should do (though on what basis the American citizens' view on that score ought to carry weight in discussions within the Israeli polity remains a mystery--though a mystery of long standing in light of the confused views of the intermeshing of religion, nationality, allegiance, and rights to interference that have marked the relationships between Israel and most of its friends and adversaries for a long time). Apparently there is such a thing as too much disclosure--especially to the public. But that ought to indict the whole enterprise of the Washington Post editorial: the problem, it seems is that too much disclosure makes too obvious the involvement of foreign states supporting the efforts of Israeli citizens when their work furthers the governmental policies of these sponsoring and financing foreign states. But that is the very problem most states would prefer to avoid--the ability of foreign states to leverage their power to affect the internal politics of another state through the financing of domestic organizations.
Before one gets too emotional about that last point, it ought to be emphasized here that as a general matter there is nothing inherently wrong or bad or dangerous about foreign states funding the citizens of local organizations in other states with respect to their work or mission. Indeed, in many cases these efforts provide a means for NGOs to better move forward their work, including work that enhances the ability of these NGOs to hold their own states accountable. Yet states have an overriding obligation--to its own polity--to preserve the integrity of its own political system. There is sometimes a very thin line between foreign government helpfulness and foreign government interference through "front" organizations--however one wants to define that over-politically charged term. Perhaps states cross that line when they engage in blanket prohibitions of foreign government funding--that is both unrealistic (think about disaster relief, for example) and advances a paranoid style of governance that indeed suggests that the government itself has doubts about its own legitimacy.
But disclosure is different. And indeed, it is hard to fathom the distaste for disclosure among elites representing the cream of Western liberal democracies--who have in the context of the operation of economic globalization, and the working of global production lines, have insisted that regimes of quite broad disclosure ought to be adopted (see, e.g., here here and here). Transparency is essential to develop markets in consumer (and political) choice (here). And it is central to efforts to enhance the embedding of principles of human rights in production and supply chains (here) and has been a central element of US and international organization policy (here). It is of course the cornerstone of democratic accountability--the better informed the citizen the more effective her political participation (here). Indeed, in light of substantial efforts to enhance cultures of disclosure for accountability, and to enhance democracy building by empowering polities to more intelligently participate in democratic government and the monitoring of the work of their representatives, It is in this context that criticism of efforts at greater disclosure by the editorial board of an influential transnational media organ is most puzzling. It is even more puzzling when the object of that disclosure is to enhance disclosure that more broadly unmasks foreign government funding of NGO work in other states and thus ought to enhance democracy building.
The Americans are no strangers to these regimes though our principle engine for managing such potential interference is the the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611 et seq. (FARA FAQs follow below). Perhaps if the Israelis (and the Russians and Chinese adopted something like that. . . . .) . Would that require Israeli NGOs to register as foreign agents unless exempted (FARA's exemptions tend to be reasonable for the most part but inclusion within them can be subject to interpretative play in the joints)? And indeed, in the face of FARA the editorial board's criticism about the Russians seeking to register NGOs as foreign agents is quite wide the mark. The Americans can do the same--that they don't is only a matter of interpretation and legislative grace. . . and for the moment. The Washington Post worries that registration as a foreign agents would give the appearance that these NGOs are enemies of the state. Yet there is nothing inherently subversive about such registration,. It is descriptive not consequential. Indeed it makes no sense to register but otherwise leave free to operate foreign NGOs if indeed they were determined to be enemies of the state by the mere act of registration. And yet these are the worries of the American press when it is foreign government involvement in US politics that is the issue:
More than a dozen prominent Washington research groups have received tens of millions of dollars from foreign governments in recent years while pushing United States government officials to adopt policies that often reflect the donors’ priorities, an investigation by The New York Times has found.
The money is increasingly transforming the once-staid think-tank world into a muscular arm of foreign governments’ lobbying in Washington. And it has set off troubling questions about intellectual freedom: Some scholars say they have been pressured to reach conclusions friendly to the government financing the research.
The think tanks do not disclose the terms of the agreements they have reached with foreign governments. And they have not registered with the United States government as representatives of the donor countries, an omission that appears, in some cases, to be a violation of federal law, according to several legal specialists who examined the agreements at the request of The Times. (Eric Lipton, Brooke Williams and Nicholas Confessore, Foreign Powers Buy Influence at Think Tanks, The New York Times, Sept. 6, 2014)
This discussion, then, also suggests that these elites understand as well that disclosure is a multi-edged sword. Very close to home in this case, the Europeans, for example, have been using disclosure rules against Israel by insisting on disclosure of Israeli products sourced in settlements in disputed territory--territory that governments in Europe may have already determined belong to someone else (see, e.g., here). There is nothing wrong with this as a matter of policy. But in the context of the Washington Post editorial it suggests, if not bad faith, and an effort to overlook the connection between the uses of disclosure to advance political agendas transnationally, and those that seek to block the ability of a recipient state to block those efforts. There is certainly an element of this in the editorial. The object, the editorial board objects, is to reduce the effectiveness of Israeli NGOs which support causes that are also supported by and funded through foreign governments. "Critics said the regulations are meant to stifle dovish organizations critical of Prime Minister Benjamin Netanyahu’s government policies toward the Palestinians, since such nonprofits tend to rely heavily on donations from European countries." (Jesef Federman, Israeli liberals cry foul over funding disclosure bill, The Washington Post, Dec. 27, 2015). The fear, apparently, is that once such connection is disclosed, that disclosure alone will affect the ability of those organizations to continue to garner support within the Israeli polity. But if mere disclosure will do that, then it ought to trouble those who support the principle of democracy (recall the beginning of the editorial) that seeks to continue this foreign funding by a more effective process of formal disclosure and functional veiling of the connection between NGO and foreign funding sources.
The real problem is not disclosure but the scope of disclosure. As the editorial board suggests, there is already a disclosure system in Israel. Public disclosure, though, in this case would make it very difficult for foreign funded NGOs to minimize or avoid that connection in any of its dealings. One might think that NGOs should be at a minimum indifferent to financing sources they are willing to accept. Yet this suggests a guilty mind--or political consequences--that opponents wish to avoid without giving up the financing that leads to these potentially politically negative consequences. The status quo in many states is that disclosure ought to be made to some government agency or other, and that this disclosure may be subject to requests for information--request usually made by media who in that way tend to control the exposure of that disclosure information to the general public to suit its needs. But what happens if an NGO must constantly and public make known its financial relationship to foreign states? That is the fear here--but disclosure but constant and public disclosure that would be unavoidable. On the one hand if the Israeli public was indifferent, for example to U.S: government financing of an NGO whose sole objective is to provide effective counsel to Ethiopians immigrants, then the fact that the NGO performing such service must clearly and often disclose the fact of that relationship should make no difference. But if an NGO is involved in sensitive political participation in Israeli politics, then the connection might have political consequences.
Worse, the Washington Post editorial appears to conflate foreign donations by individuals and by states. It criticizes the Israeli proposal because it does not apply to individual contributions by foreign persons to the same extent as it covers contributions by foreign governments. The issue is important. It is not always clear that private and public interests do not converge. More importantly--and especially with respect to many issues--private transnational networks advancing particular policies may be more effective in seeking to intervene in national campaigns or to fund local NGOs than states. In either case the functional effect is the same--projection of foreign interests into national democratic institutions. But the formal structures are different. It is not clear, though, that transnational political actors can be functionally differentiated in their effects from foreign governments. In both cases it is foreign funding that may affect the integrity of national political institutions (eg here). Rather than acknowledging this the editorial board of the Washington Post appears to take the low road. The rationale of the Washington is bathos--the reason for the criticism is that the rule only covers those foreign sponsors of programs that the newspaper supports. But to draw support or to criticize provisions of a proposal only because the result does not suit the political agendas of a foreign newspaper itself points to the problem that the Israeli law seeks to expose.
Still, for all that, there is much to criticize in the Israeli draft. As is common among legislators globally, the rules overplay their hand. The proposed legislation moves from disclosure to unnecessary vindictiveness in ways that undermine the value of disclosure in substantial respect. The object is to ensure that the polity understands that foreign governments fund particular NGOs and then leave it to the polity to react, it ought not to be to humiliate and to engage in subterfuge to undermine the operation of such NGOs indirectly. And it is hardly positive to enact a measure that is itself politically lopsided--focused on disclosure touching on NGOs associated with one political faction while continuing to protect the funding sources of politically protected NGOs from equal disclosure. Indeed, the proposed legislation appears to do little to move forward the laudable project of transparency in critical respects (see eg here)--and that is something that the Washington Post might have focused on instead of using its newspaper for a more politically targeted ends. And indeed the issue is not only important in the Israeli context but represents a new global movement of tarnsnationalized and privatized politics that projects its agendas and powers across borders (e.g., US Christians ‘bankrolling’ no campaign in Ireland’s gay marriage referendum (May 16, 2015)). Lastly, the legislation exposes its own bad faith, its own political motivation, by the tactics used to demonize the objects of disclosure. The meanness of the measure detracts from its value--to expose the sources of foreign public funding. And indeed, the possibility of Jews resorting to the tools of the NAZI regime--identifying badgers--was too good to resist when criticizing the government of a majority Jewish state. It is in this sense that the Israeli proposal does more harm than good. But that is not the tack of the Washington Post--to take the measure on in its own terms. And for that the Americans also do more damage. The editorial itself has become an instrument of internal Israeli politics (here).
The Washington Post lost its way when it shifted focus from the valuable project of transparency--to the more immediate one of meddling in the political battles within the Israeli polity. And it played with fire--teasing a flirtation with the de-legitimization movements that have served no useful purpose and that tend to irritate states more than move forward solutions to important policy issues. The issue of foreign funding of NGOs is an important one. It implicates the fundamental basis of sovereignty--and of indigenous democracy--in ways that are central to the integrity of the Westphalian system on which contemporary international public law structures are based. When influential elements of powerful media outlets denigrate these issues in favor of the sort of politicking that suggest involvement in internal issues of foreign states, it tends to cloud rather than clarify issues. It is unclear how powerful a message grounded ind democratic values can be when the message itself undermines the very democratic values it purports to advance. For there is nothing democratic about systems in which foreign states are permitted a free hand in financial support of participants in the democratic political life of other states. And worse when the NGOs funded are seeking to actively change the political structures of the states in which they operate. That foreign states fund these entities is unremarkable. That states seek to use the mildest of methods--public disclosure--to expose these interventions should be unremarkable as well. In the meantime the real issues remain unaddressed--evenhandedness in disclosure, protection of funding for traditionally valuable NGO activities touching on purely commercial or solely of a religious, scholastic, academic, scientific or fine arts related activities, and the like. The Israeli proposal has much in it to criticize--but so, too, does the Washington Post's critique.
Ultimately, the Israeli (and Chinese, American and Russian) interventions raise a fundamental issue that to date is substantially unaddressed: how does one preserve national democratic institutions in the face of the transnationalization of politics? The causes that states tend to fund advance national interests abroad; but they also reflect movements in supra national sentiment about policy issues. States are not the only entities that fund these activities of local NGOs across borders. The Israeli case makes clear that private donations from foreign sources may well outpace public grants, and sometimes by a substantial amount. In either case there is a challenge to national democratic institutions. But these are different only in kind from issues that have been troubling in the United States for the last quarter century--the nationalization of politics that now has created large movements of private funds projected from foundations and other actors into local political battles. Democratic institutions are still structured as almost wholly national. Internationalization of core premises of governmental systems has added a dimension of global constraints to the exercise of national power by polities organized as states. Yet the globalization of the normative framework fo democracy and democratic accountability has also been privatized and transnationalized in a way that parallels the transnationalization of economic activity under the logic of economic globalization. Borders do not seem to matter as much anymore for the operation of global production chains; they appear to matter less as well for the development of global political chains. But government remains special in the sense, at least, that political power still remains organized on the basis of an ideology that posits, as its basis, a free and engaged national polity for which sovereign power can be deployed in accordance with the rules of the governmental system created for that purpose. If nations seek to influence other nations they are presumed to engage do so government to government. To reach directly to the people of another state comes close to challenging the authority of a government and injects foreign states into the political life of a country within which they, at least in theory, have only the most limited rights (but see here). To do so openly, whether by foreign states or transnational political communities poses problems for classical democratic theory. But to do so surreptitiously poses potentially greater threats to the integrity of domestic political orders--threats that can be managed and overcome, no doubt--but not by avoiding vigorous disclosure regimes. As state actors like to tell their own citizens as they seek to monitor them ever more closely--if you have nothing to hide you ought to have little concern about engaging in such financing in the open. But that is an editorial for another day, perhaps one beyond the agendas or interest of the editorial board of the Washington Post.
What is FARA?
FARA is short for the Foreign Agents Registration Act of 1938, as amended, 22 U.S.C. § 611 et seq
What is the purpose of FARA?
The purpose of FARA is to insure that the U.S. Government and the people of the United States are informed of the source of information (propaganda) and the identity of persons attempting to influence U.S. public opinion, policy, and laws. In 1938, FARA was Congress' response to the large number of German propaganda agents in the pre-WWII U.S..
Are foreign governments the only foreign principals?
No. The term also includes foreign political parties, a person or organization outside the United States, except U.S. citizens, and any entity organized under the laws of a foreign country or having its principal place of business in a foreign country.
How does the Act work?
The Act requires every agent of a foreign principal, not otherwise exempt, to register with the Department of Justice and file forms outlining its agreements with, income from, and expenditures on behalf of the foreign principal. These forms are public records and must be supplemented every six months.
The Act also requires that informational materials (formerly propaganda) be labeled with a conspicuous statement that the information is disseminated by the agents on behalf of the foreign principal. The agent must provide copies of such materials to the Attorney General.
Any agent testifying before a committee of Congress must furnish the committee with a copy of his most recent registration statement.
The agent must keep records of all his activities and permit the Attorney General to inspect them.
When does one register?
One must register within ten days of agreeing to become an agent and before performing any activities for the foreign principal.
Does the Act limit an agent's lobbying and publishing informational materials (propaganda) for a foreign principal?
No, the Act requires only registration.
What are the filing and labeling requirements for informational materials?
Section 4 of the Act, 22 U.S.C. § 614, outlines the responsibilities of a registrant who disseminates informational materials on behalf of a foreign principal.
If an agent disseminates informational materials, by mail or by any means or instrumentality of interstate or foreign commerce, and intends the materials to be disseminated among two or more persons, the agent must adhere to the requirements of Section 4(a) and (b) of the Act. A copy of all informational materials disseminated for or in the interests of a foreign principal must be filed within 48 hours of transmittal, and must adhere to the statutory labeling requirements, which include the presence of a conspicuous statement on the materials. See 22 U.S.C. §§ 614(a) and (b). The following language must be included in the conspicuous statement in order to comply with Section 4(b) of the Act:
This material is distributed by (name of registrant) on behalf of (name of foreign principal). Additional information is available at the Department of Justice, Washington, DC.
When seeking to comply with the requirements of Section 4 of the Act, a personal or organizational website, as well as any social media presence or text message, must contain a conspicuous label if such media are used as instruments to disseminate informational materials. Acceptable methods for placing a conspicuous label on a website include placing the required language visibly on the home page, as a running header or footer on a website home page, or within a website “About Us” page. Appropriate methods for labeling a social media presence such as Twitter, Facebook, an online forum, or a blog include placing a conspicuous statement on the social media access page of the person’s or organization’s website, within a Facebook or Twitter profile summary, or on the home page for an online forum or blog. A text message used to disseminate informational materials shall be marked at its beginning with the required label.
Whenever transmittal of the same item of informational materials is made over a period of time, the registrant may file the materials annually for as long as such transmittal continues. Examples include tourist brochures (no label required), economic development pamphlets, and trade publications.
If a registered agent contacts any agency or official of the Government (including a member or committee of Congress) on behalf of the agent’s foreign principal, Section 4(e) of the Act requires that the agent disclose his or her status as a foreign agent and identify his or her foreign principal.
Section 4(f) of FARA states, in essence, that whenever a registered agent appears before any committee of Congress to testify for or in the interest of his or her foreign principal, the agent shall, at the time of the appearance, furnish the committee with a copy of the agent’s most recent registration statement filed with this Department for inclusion in the record as part of his or her testimony.
Are there criminal penalties for violating the Act?
Yes, failure to register, keep accounts, mark informational materials, provide a congressional committee with a copy of the agent's most recent registration, and agreeing to a contingent fee based on the success of political activity are violations of the Act. The FARA Unit seeks to obtain voluntary compliance with the statute.
See our enforcement page for details.
Does everyone who acts as an agent of a foreign principal have to register?
No, there are a number of exemptions. For example, diplomats and officials of foreign governments, and their staffs, are exempt if properly recognized by the U.S. State Department. Persons whose activities are of a purely commercial nature or solely of a religious, scholastic, academic, scientific or fine arts nature are exempt. Certain soliciting or collecting of funds to be used for medical aid, or for food and clothing to relieve human suffering are also exempt. Lawyers engaged in legal representation of foreign principals in the courts or similar type proceedings, so long as the attorney does not try to influence policy at the behest of his client, are exempt. Any agent who is engaged in lobbying activities and is registered under the Lobbying Disclosure Act is exempt from registration under FARA if the representation is not on behalf of a foreign government or foreign political party.
Is FARA the only statute relating to the registration of agents?
No. The Lobbying Disclosure Act of 1995 (LDA), 2 U.S.C. § 1601, removed from FARA a class of agents who are engaged in lobbying activities and who register under the LDA. This Act is administered by Congress.
18 U.S.C. § 951 provides criminal penalties for anyone, other than a diplomat, to operate as an agent of a foreign government without first notifying the Attorney General, unless the agent is engaged in legal commercial transaction. This statute is aimed at foreign government controlled agents engaged in non-political activities.
Also, 18 U.S.C. § 2386 requires registration by certain organizations which engage in political activity, civilian military activity, is under foreign control, or has as its purpose the overthrow the government by force.
Finally, 50 U.S.C. § 851, requires registration of persons who have knowledge of or have received instruction or assignment in espionage, counterespionage or sabotage service or tactics of a foreign country or political party.
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