Could David Miranda be a “terrorist”?

by Carl Gardner on August 20, 2013

There’s understandably been a great deal of reaction to the nine-hour detention at Heathrow airport of David Miranda, who was travelling as part of his work with Guardian journalists covering Edward Snowden’s disclosures, and whose laptop and memory stick were seized as a result of his detention and questioning under paragraphs 2 and 6 of Schedule 7 to the Terrorism Act 2000.

Paragraph 2(1) of Schedule 7 says that:

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b)

and section 40(1) provides that a

“terrorist” means a person who …

(b) is or has been concerned in the commission, preparation or instigation of acts of terrorism.

So there’s no doubt: the purpose of Schedule 7 is clear. I fully agree with David Allen Green that the questioning and detention of David Miranda was unlawful unless carried out for the purpose of determining whether he appeared to be concerned in “terrorism” within the meaning of the Act.

To be clear, this question of the legal purpose of the questioning is separate from the question whether he was suspected of terrorism or not. Paragraph 2(4) makes clear that

An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

So a police officer can question and detain someone under Schedule 7 even without any reason to suspect him or her of being a terrorist. Nonetheless, the questioning must be for the purpose of determining whether or not he appears to be one.

If the questioning here was in truth for an ulterior purpose – say, to get hold of and investigate for other purposes documents Miranda was carrying, perhaps circumventing the need either to arrest him in order to do so, or else to apply to a judge to search the Guardian’s offices for “journalistic material” under the Police and Criminal Evidence Act 1984 – then it was unlawful.

I’m by no means a “civil liberties” campaigner. I’ve not been alarmed by the Guardian’s revelations about GCHQ: I think it’s important that it has legal power to find and monitor terror suspects, and have yet to read anything that makes me think it’s acted unlawfully or without proper Parliamentary scrutiny. I think the police may well need powers like Schedule 7. But I also think it’s right that the detention of a journalist in these circumstances causes concern, and I’m pleased the independent reviewer of terrorism legislation, David Anderson QC, has asked to be briefed about it.

The Metropolitan Police have defended their actions as “legally and procedurally sound”, and a Home Office spokesman has apparently said

If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that.

I’ll be interested to see if they can successfully defend the detention in court, assuming Miranda’s legal challenge goes ahead. I wouldn’t much fancy defending this judicial review myself, I have to say. There must be quite a few anxious discussions going on tonight about how to respond to today’s letter from Bindmans solicitors between government lawyers at the Home Office, Treasury Solicitor’s Department and the Attorney General’s Office, probably involving Treasury Counsel James Eadie QC or Jonathan Swift QC.

A particularly important and interesting question is (regardless of whether they had grounds to suspect him, which as I’ve said is separate, and legally irrelevant) whether the police or intelligence services could seriously wonder whether David Miranda might actually be, or rather appear to be, concerned in “terrorism”. By this I’m not asking rhetorically whether they might think he planned to make explosives or intentionally help Al Qaeda or the Real IRA. What I mean is, might he have appeared to be a “terrorist” within the meaning of the Terrorism Act 2000, because of his connection to the Guardian?

This isn’t as silly a question as it first appears. Indeed, the former MP Louise Mensch has suggested as much in a tweet to David Allen Green (@JackofKent):

The definition of “terrorism” is in Section 1:

(1) In this Act “terrorism” means the use or threat of action where—
     (a) the action falls within subsection (2),
     (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and
     (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.

(2) Action falls within this subsection if it—
     (a) involves serious violence against a person,
     (b) involves serious damage to property,
     (c) endangers a person’s life, other than that of the person committing the action,
     (d) creates a serious risk to the health or safety of the public or a section of the public, or
     (e) is designed seriously to interfere with or seriously to disrupt an electronic system.

“Terrorism”, then, is anything that fulfils one of the conditions in section 1(2), and both conditions 1(1)(b) and 1(1)(c).

The police might well think publishing the content of sensitive intelligence-related documents could “create a serious risk to the safety of the public”, and so satisfy the section 1(2)(d) condition. Edward Snowden’s revelations, whatever you think of them, certainly raise political issues, and arguably the Guardian’s reporting of them has been in a sense “campaigning” as well as investigative. So perhaps the Guardian’s use of the documents could be said to advance a political cause – the “civil liberties agenda” if you like, or the cause of wanting closer scrutiny of the intelligence services. That might satisfy the section 1(1)(c) condition.

It seems to me more difficult to see any use of the documents by the Guardian as “designed to influence the government” as required by section 1(1)(b); the Guardian’s actual purpose is to inform the public and sell newspapers. Calling for a debate isn’t the same thing as trying to blackmail the government, or even to lobby it. So it’s a stretch to argue that the Guardian wants to influence the government. But a paranoid police or intelligence officer might think so. And after all, in a democracy publicly raising serious political questions in some ways overlaps with trying to influence the government, at least between elections.

If that’s right, then it’s possible to argue that David Miranda may, by acting as a go-between carrying documents to journalists (if that’s what he did), have been involved in the preparation of an act of “terrorism”; and therefore to argue that he may indeed have appeared to be concerned in “terrorism” within the meaning of the legislation, although certainly not a terrorist giving that word its plain meaning.

The wide meaning of terrorism under the 2000 is not a newly-discovered issue: David Anderson QC has warned about it in each of his annual reports on the operation of terrorism legislation. In his report on the use of the legislation in 2010, for instance, he wrote at paragraph 3.6:

A broad definition of terrorism may serve also as a temptation to use other powers (including port and border controls) for purposes other than that for which they are intended.

The reference to port and border controls being, of course, a reference to Schedule 7.

Amendments to Schedule 7 are already being debated by Parliament in the Anti-social Behaviour, Crime and Policing Bill. The proposed changes involve, for instance, reducing the maximum period of questioning, from the nine hours endured by David Miranda down to six hours. But the opportunity is there for Parliament to change Schedule 7 however it wants.

I don’t oppose the existence of the Schedule 7 powers: I think they can be used reasonably to combat genuine terrorism. I don’t have a problem, either, with the idea that police and intelligence officers should have powers to search for and seize documents whose publication could breach the Official Secrets Act 1989, for instance. Indeed if their current powers under official secrets legislation are inadequate, I wouldn’t be opposed to their being given new ones.

But where unusual powers are conferred on the police and intelligence services, it should be reasonably clear how those powers will be used. The law should speak plainly. Technically, an Act of Parliament can define any term however Parliament wants it to; once legislation has set out in detail a range of conduct it wants to do something about, it can use any word as a convenient label to encompass and describe that conduct. But there are dangers in distorting the meaning of words, and a wise Parliamentary counsel and wise ministers will not bend statutory language too far.

So whether or not the questioning and detention of David Miranda is held to have been unlawful, Parliament should now look again at the definition of terrorism in the 2000 Act, at least as it applies in the context of Schedule 7 and to the work of journalists. I worry about how long public confidence can be maintained in the existence of Schedule 7 if it’s used to fight things labelled “terrorism” that are nothing like what you and I mean by the word.

{ 18 comments… read them below or add one }

1 Nigel Smith August 20, 2013 at 22:07

“Context is everything.”

Those words were drummed into me when I was handed an injustice by the courts.

In this instance, as you highlighted, the Police might not have the proper powers to search and seize property from a journalist who may have breached the Official Secrets Act 1989. This is something that Parliament needs to look into and rectify.

However, I am quite satisfied that in this particular context, the information being transported could be used to endanger life (satisfying (2)(c) or (d) and the articles written by the Guardian were designed to influence or modify the activities of GCHQ and the NSA (satisfying (1)(b)), to embarrass the Government in the process and reduce public confidence in them, to advance the Civil Liberties agenda & to enrich the Guardian by selling more papers in the process (satisfying (1)(c)).

Ultimately, Greenwald, Miranda and the Guardian are acting irresponsibly if they disseminate information which then endangers lives, just as much as if they disseminated a terrorist handbook.

Under the circumstances, given that we know that Miranda, Greenwald and the Guardian misled the public about the true circumstances of the detention (in that they said that Miranda had not been offered legal aid), you have to wonder of Miranda is also telling the full truth about the questioning. Could it be that the questions were really designed to elucidate whether Miranda was fully complicit in Greenwald’s activities & by doing so had crossed the line in aiding an abetting any activity which could be construed as terrorism.

The Home Office seem very satisfied that the powers used to conduct the questioning and seize the information was used correctly.

Maybe the legal eagles on here can help MPs prepare the powers needed to detain and seize people handling stolen secrets?

2 Nigel Smith August 20, 2013 at 22:15

By the way, doesn’t this transfer of information to a journalist by Snowden (for it must have originated with him), mean that he is in breach of the conditions made by President Putin when he was granted his temporary visa?

I would hope that the Russian President uses this this breach to restore relations with Obama by sticking Snowden on the first plane to the United States.

If you play with fire and break your promises, you will get burned.

3 david August 20, 2013 at 22:52

Carl,

This passage jarred with me: I don’t have a problem, either, with the idea that police and intelligence officers should have powers to search for and seize documents whose publication could breach the Official Secrets Act 1989, for instance.

To my knowledge no intelligence officer(s) have a legal power to search and seize full stop. Nor should they. I exclude their role within official premises, although surely that is more a security investigation function, not intelligence.

4 aj August 21, 2013 at 00:40

@ nigel smith – i note you have commented elsewhere on this case, appear to have exceptional ability at reading statute law & present compelling arguments about it but all based on a certainty of what Miranda was carrying of which you seem overly certain???

5 Adam Saltiel August 21, 2013 at 01:10

@nigel smith “If you play with fire and break your promises, you will get burned.” Sadly this is exactly what this state and the US are now doing. Hysteria has taken hold. People in these monolithic and highly secretive organisations rarely have the ability to be particularly intelligent.
In the near term it will be US voices that calm things – but it will be a struggle. 10 years perhaps? It is the logic of (national) self preservation. But the whole story – the whole broad story – bodes ill for what is not far beneath the surface in the UK.
It seems to me that GCHQ are virtually in melt down about this.
One has to wonder why this is since, afterall, Snowden has revealed nothing apart from the blindingly obvious.
Of course, that is it. The security services do not want people to understand what is blindingly obvious:if you use mechanisms that find needles in haystacks you need two things, the haystack and the needle.
People are, so to speak, providing cover for the activity of the security forces which, when you think about the ramifications of this, is a very strange thing.
First of all it is only going to be rather stupid and under resourced terrorists who use the open internet. Perhaps there are many such people about? Really the wild cards, more the over excited young men with ideas of perpetrating violence such as the Tsarnaev brothers.
Real terrorists will use undetectable communications. As work funded in universities by the Defense Advanced Research Agency (DARPA) indicates, this is very possible.
Now, aside from terrorists, ordinary people are going to begin to want their communications to be private from the prying eyes of their state. As the issues are understood better and solutions surface that will be the choice that many more people will make.
Now to immediate facts. Read http://www.theguardian.com/world/interactive/2013/aug/20/david-miranda-letter-home-office . It is quite clear about the difficulty Kendall had in making contact with Miranda. There was no lie on the part of Miranda about this.

6 Ratty August 21, 2013 at 12:32

“but all based on a certainty of what Miranda was carrying of which you seem overly certain???”

Surely the point is that the data/zip files being carried by Miranda MAY have contained such information, and the possibility that they DID contain information which may be useful to terrorists, was more than enough to activate the powers within S7 allowing them to investigate whether Miranda WAS involved in terrorist offences within the meaning of the 2000 Act.

7 Pynch August 21, 2013 at 15:52

There are two questions that need to be answered in this case:

1 – Is a release of information deemed an Act of Terrorism by the Terrorism Act 2000?

2 – Can possession of information noted under s58 and s58A of the Act (making you a terrorist) trigger use of Schedule 7, or can Schedule 7 only be used to intercept imminent terrorist Acts as defined in s40(1)(b)?

If the answer to Question 1 is yes, then the Police Acted within the law, though the breadth of this law is somewhat frightening (and would include lobbying from ideological groups as well as journalists).

The more interesting question is number 2, which looks at if Miranda was explicitly denied his legal rights. If release of information is not a terrorist Act, but he was considered a Terrorist because of possessing data from Snowden (s58/s58A), then it seems use of schedule 7 may have been unlawful.

A review should explore if arrest under s82 of the Act (for possession of s58 materials) was more correct, thereby putting him into the legal system and affording him stronger judicial oversight.

If it is the case that he was denied his legal rights intentionally, or for the purpose of intimidation, then this would be a most serious case indeed.

8 Nigel Smith August 21, 2013 at 17:32

>Pynch

It rather depends on the information as to whether its release would constitute a terrorist offence.

If I release a cook book, I can hardly be accused of terrorism – offences against culinary science maybe, but not terrorism.

However, if I release a cook book that teaches you how to make peroxide based explosive, then that would be an offence.

Miranda claims that he didn’t know what he was carrying – so do the drug mule girls in Peru. Ignorance is no defence and difficult to prove.

If Greenwald was putting his boyfriend at risk by asking him to carry stolen material, then shame on Greenwald for risking his partner’s freedom.

If the information was indeed the very same as that destroyed by the Guardian after the intervention of the Cabinet Secretary, then the police did act within their powers to stop, interview and seize the material for further investigation. It’s a pity that they could not decrypt the drives before the nine hours were up, because they may have been able to arrest Miranda and charge him. They may still do so if he returns for the judicial review.

Schedule 7 does not require the Police to have some cause before they detain someone. They can detain them to determine if there is an offence without any prior proof. In this instance, it certainly seems that the Home Secretary and her legal advisers believe they are on solid ground. So they must be satisfied that the Police acted in accordance with the Act.

9 Louise Holden August 21, 2013 at 17:57

I think squeezing the Guardian’s actions into “terrorism” here would be counter-intuitive.
The point of terrorism is that an act causes harm and it is the threat of that harm that influences the government, which is why S1 requires an action and then the use or threat of that action to influence.
What the Guardian has is an action, publishing material, which may, arguably, cause harm, but any influence on the government is not applied by means of threatening that harm (the Guardian has not, to my knowledge, ever suggested that its publication of the Snowdon information is dependent on the government’s actions) but by argument based on information that is now, thanks to it’s actions, within the public sphere.
It might have been possible for the paper to threaten the government with further revelations in order to achieve its ends, and that might constitute terrorism if the revelations constituted an appropriately harmful act and it was this harm that the government was intended to avoid by doing what the paper demanded, but this hasn’t happened. The aim to influence the government is not by the use or threat of harm to force their actions but by publishing information to allow other people to find out what the Government has been doing and encouraging them to be suitably outraged, and I think the test in 1(b); the use or threat is designed to influence the government… fails.

10 Colin August 21, 2013 at 18:07

“I don’t oppose the existence of the Schedule 7 powers: I think they can be used reasonably to combat genuine terrorism.”

It would be interesting to know how many times these powers have been used, and how many previously unsuspected terrorists have been convicted as a result.

I suspect the latter figure is zero.

11 Plutarch August 21, 2013 at 18:25

Why did you omit section 48(1)(a), which defines terrorism in a way that refers to the commission of certain offences, and does NOT depend on the individual being someone ‘concerned in the commission, preparation or instigation of acts of terrorism’. One of the offences covered by section 48(1)(a) is section 58(1)(b), which says that “A person commits an offence if—

(a)he collects or makes a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism, or…….(or, please note)

(b)he possesses a document or record containing information of that kind.

Given the known facts admitted by Greenwald – Miranda was the mule on a Guardian funded air ticket transporting Snowden’s stolen top secret documents – why was it a misuse of Schedule 7 for UK authorities to see whether Miranda possessed information that would be an offence under section 58(1)(b)? Can someone please explain?

12 Pynch August 21, 2013 at 18:26

@ Nigel Smith

No – you need to be clearer about the difference between an “act of terrorism” and wider offences under terrorism legislation.

It may well be that releasing information is seen as an offence under terrorism legislation, but this is not the same in legal terms as it being an ‘act of terrorism’. For example, arranging for Osama Bin Laden to address your local school would be an offence. There is also a specific section about training people to use firearms or explosives for terror purposes. Neither of these things constitutes an ‘act’ of terror as defined by Section 1 of the Terrorism Act 2000, even if they are illegal.

My question is if the distribution of information can itself be seen as an imminent terrorist act in a similar category to setting off a bomb. If it can, then powers under schedule 7 were applicable, but I believe this to be a question that needs to be tested in court.

If it can not, but the information held by Miranda was seen to contravene Section 58 or Section 58A of the 2000 Act, then the Police should have arrested Miranda under powers granted by Section 41 (my error earlier with referring to s82).

In doing this, his detention would have been in the legal system and subject to greater legal scrutiny and judicial oversight as set out in Schedule 8.

The Government may argue that release of data is a terrorist act, but they have not made this argument yet. Arguing that the data Miranda possessed is an offence (as they have done) does not allow for the correct cause for use of Schedule 7.

They may well consider Miranda to be a terrorist (as the blog post sets out), but they clearly did not want to have the argument required by Section 41 (1), which states the need for reasonable suspicion before an arrest can be made.

13 Pynch August 21, 2013 at 18:40

@Plutarch

This tripped me up when I first looked through (and influenced some subsequent blog posts that I made elsewhere, where I first got it right, and then got it wrong the second time around).

Schedule 7 explicitly states:

(1)An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b)

This deliberately excludes 40(1)(a). Therefore, the Government must argue that potential release of s58/s58A information itself constitutes an “act of terror” or Miranda should have been arrested under section 41.

14 Plutarch August 21, 2013 at 20:16

Not sure I understand your point, given that the law is that an examining officer may exercise his power to stop/detain under Schedule 7 whether or not he has grounds for suspecting that a person falls within section 40(1)(b). Once detained under Schedule 7, the Act of course makes clear that any questioning (and the power to question seems to be separate from the power to stop/detain) has to be for the purpose you identify.

15 pynch August 21, 2013 at 21:16

@ Plutarch

My reading of Schedule 7 is as follows:
In a port or border area, if the person is in transit, an examining officer may detain a person to question him about if he “is or has been concerned in the commission, preparation or instigation of acts of terrorism”.

They may do this without grounds.

However, Government justification has been that he was in possession of material which would help terrorism (as defined under s58/s58A) – this means that they should have arrested him under Section 41. Questioning under Schedule 7 (which is what took place for 9 hours) should not be used for this purpose.

Of course it could be argued that he may have been about to undertake, or set up in a “terrorist act”. The legal test here is very weak, and the limit is one of time, not the officer’s judgement.

But if Government reasons are those talked about in the press and relate to the documents alone (as stated) then he was a known individual, carrying something which they alreadsy about (the Home Secretary was informed beforehand), and they didn’t want to arrest him under Section 41.

This seems to be a stretch of those powers.

16 Carl Gardner August 22, 2013 at 00:43

David,

To my knowledge no intelligence officer(s) have a legal power to search and seize full stop. Nor should they.

Good point: I should I think simply have referred to police officers.

17 Carl Gardner August 22, 2013 at 00:54

Louise,

The point of terrorism is that an act causes harm and it is the threat of that harm that influences the government …

What the Guardian has is an action, publishing material, which may, arguably, cause harm, but any influence on the government is not applied by means of threatening that harm …

The aim to influence the government is not by the use or threat of harm to force their actions but by publishing information to allow other people to find out what the Government has been doing and encouraging them to be suitably outraged, and I think the test in 1(b); the use or threat is designed to influence the government… fails.

I agree with the point you make about the actual nature of terrorism: it involves causing of threatening harm in order to influence governments. I also agree, obviously, that that’s not what the Guardian’s been doing.

But I don’t think you’re right about section 1(1)(b). Remember it’s not the “use or threat” of harm which that provision talks about: it’s the use or threat of action. The Guardian’s “use of publication” is a “use of action” and so may be capable of being caught. It doesn’t have to “use” harm in any sense.

I think this is one aspect of the way the statutory meaning of terrorism departs from the plain meaning of the word.

18 Adam Saltiel August 22, 2013 at 19:05

Carl,
I’m not sure if the comments below are of interest to you?
I’m sorry it is a bit long. If they are please edit out these lines.

Lord Falconer has stepped in with his interpretation of the unlawfulness of David Miranda’s detention.
It is an interesting intervention since it is, necessarily, political showing how the law and politics overlap.
When Lord Falconer makes a point it increases Labour’s standing while attacking the government’s credibility.
While the legal issues surrounding this case touch on politics, they also touch on technology and human psychology, both individual and mass.

The Mona Lisa analogy.
I am part of a gang and my confederates have stolen the Mona Lisa.
The role that has been assigned to me is to take it across the border, not from the original country from where it was stolen, but across the borders of some other countries to a final destination, where it will be most valuable.
All of this takes place some time in the past, let’s say for the sake of argument, the 1950’s, when people were not generally familiar with the Mona Lisa so would not have recognised it, let alone appreciated it, were they to see it.
Here we imagine that the painting, the Mona Lisa, represents the picture of data gathering. Let’s just say the shapes, her eyes, her nose etc. represent where this activity takes place, the colours, the names of the data gathering programs and so forth.
We divide the painting into its surface and its structure. Those things I have mentioned are on the surface. The structure would be, for instance, the thickness of paint, its exact composition and many other things of detail. This is intended to be analogous to the many secrets that security agencies must hold. Further, it is claimed by some that the surface shows something more than just colours representing names of spy programs etc. but something about the nature of this huge communication medium used by billions of people.
Continuing my analogy, my gang knows that with knowledge of both what I have called surface and structure we can reproduce a fraudulent copy and that we could dupe buyers – or even interest buyers without duping them, because of its faithfulness to the original. Very valuable to us. We are a gang of thieves:we want to make money at all costs.
Now, let’s call reproducing the painting in this way a terrorist act.
To recapitulate, we have something stolen, we have passed this over borders and we have a potential terrorist act.
Just as in the 50’s most people would not have recognised either the original or a reproduction of the Mona Lisa (indulge me), nor appreciated it in its complexity as an object of great beauty so today people are not understanding the larger picture of people communicating with one another using the internet and, inserted into this picture, data gathering by either friend or foe.
Now, taking up my analogy again, we do not know if the information that has been stolen does really contain enough about the ‘structure of the painting’ to enable the commissioning of an act, or acts, of terror.
All there may be, despite that there are thousands of classified documents, is information about the ‘surface of the painting’.
Information that, for these issues to be debated and so that the credibility of the facts can no longer be denied, are of legitimate interest to you and I.
I should add that there is a twist to this in that the information gathering is predicated on the activity of the general public, it relies on there being a haystack within which needles can be found. This means there is a strong incentive to keep this whole charade going in order to create cover for finding the least resourced terrorists.
Of course, this reason is far short of a genuine threat to national security.
In the analogy, it would be like flooding the market with reproductions of the Mona Lisa and watching all purchases called ‘Mona Lisa’ so that when one goes for a great deal of money the safe bet would be it is one of my gangs indistinguishable copies of the original.
Now, with this flood of reproductions, people think they recognise the Mona Lisa, but, arguably, their ability to really appreciate it has been blunted. I will not pursue this angle here apart from making the obvious point about the importance of democracy.
So what if the situation is that there is both information about structure and surface sufficient to facilitate acts of terror?
Here the issues are the law concerning the following:-
1. Journalism – journalists can make the judgement call as to what to reveal of their journalistic source material.
2. Retained (not for publication) material – there should be no risk that it falls into the wrong hands. This may explain why Miranda was transporting it? But I find this an odd aspect of the claim that these thousands of documents are ‘journalistic materials’ while not constituting any form of threat to security:that the law might allow the journalist discretion to make that judgement.
3. Whether anything this material contains pertaining to structure cannot be found out by other means or is common knowledge for people with an interest in such things.
This last point needs some expansion.
After all, it would be the least resourced putative terrorist who would be interested in the most gross and obvious pieces of information, which, on the other hand, would surely be sufficient for an open debate.
More sophisticated and complex facts would be pieced together by more sophisticated terror organisations for themselves, so what help would any publication be to them?
There is a whole area between naive communication between the disaffected and huge acts of terror where electronic stealth would be the way the terror organisation would protect themselves. This includes targeting infrastructure e.g. in DOS attacks and other nefarious activities. Would the Guardian be so careless as to publish such information? So far they haven’t. The state cannot rely on that and my questions above remain. I believe that the situation in 3. pertains, but cannot that be relied upon in a court of law?

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