OFCCP vs. Oracle

Three days before Barack Obama left office, his Department of Labor served a complaint against Oracle America, Inc., alleging gross systemic discrimination in both its hiring practices and its pay practices.

Specifically, it claims that Oracle discriminates against non-Asians in hiring for sixty-nine job titles, and discriminates against women, Asians, and African-Americans in pay for eighty job titles.

DID ORACLE DISCRIMINATE?

Is it strange that Oracle allegedly discriminates both in favor of and against Asians?

The OFCCP (the Office of Federal Contractor Compliance Programs) is the program at the center of this complaint; it is involved because Oracle is a government contractor. The only points supporting OFCCP’s claim are statistical analyses.

The complaint mentions exactly zero employee complaints, and it doesn’t even try to say that there is evidence that Oracle intended to discriminate.

It is difficult to determine and compare the myriad factors involved in assigning appropriate compensation, and the statistical analyses OFCCP conducted likely fall short. Economically speaking, any mutually agreeable level of compensation is appropriate, and in a free market, compensation will tend to be equitable.

SHOULD THE OFCCP HAVE THIS POWER?

However, when Oracle filed a countersuit on November 27, 2019, (yes, the case is still going on), its press release discussed none of those points. Instead, it focused on the unconstitutionality of the Department of Labor acting as “investigator, prosecutor, judge, jury, and appellate court.”

Of course, such arrangements are not limited to the Department of Labor; they have become unfortunately common throughout the Federal bureaucracies. This is despite the blatant violation of the Constitutional separation of powers, arguably the most basic fact of American civics. For most of us, as soon as we started learning about the US Government, we learned about the separation of powers, and how the Founding Fathers designed the system with the famous checks and balances that prevent tyranny.

How well has that tyranny prevention worked out so far?

Oracle argues that the situation is not only unconstitutional but also statutorily illegal. It remains to be seen how the suit and countersuit will turn out; typically, it takes extremely deep pockets to win such a fight against the feds. Oracle may yet come out on top, but so far, it appears that the checks and balances have failed to protect Oracle — a company that provides over 100,000 jobs and many billions of dollars of services to the economy each year.

COULD THE FREE MARKET HANDLE THIS?

The OFCCP has not made a compelling case for the existence of systemic discrimination within Oracle; its claims are prima facie incongruous and based exclusively on ambiguous data. Indeed, it appears that it has inserted itself into a situation in which no one has complained, no one has objected, no one has said that their compensation was not appropriate for their labor or that they objectively should have been hired when they were not.

But, what if there really were discrimination?

And, is there a better way to handle it than the intra-DoL system, or even the Constitutional system?

My interest is in how this situation would play out in a free market. Let’s consider it.

A free market, with total freedom of association, would probably have no claims of hiring discrimination, because no one would be compelled to hire or retain anyone against their will. Of course, a reputation for discrimination could easily lead to a loss of revenue, as a consumer base that opposes discrimination would likely choose to take their business elsewhere.

Furthermore, formal anti-discrimination regulations could be voluntary. Associations or organizations could prescribe standards for avoiding discrimination, as well as regular audits to ensure compliance, and consumers could choose to patronize only those companies that subscribe to sufficiently stringent standards and pass the audits.

HOW WOULD THE FREE MARKET HANDLE THIS?

What would happen with a discrimination claim in a free market?

Let’s say that Oracle is certified as discrimination-free by the standard-bearer anti-discrimination association. In this scenario, a prospective employee believes that Oracle has discriminated against him in the hiring process, or a current employee believes (despite mutual agreement) that Oracle has discriminated against him in his compensation.

He could discuss it directly with the appropriate people in Oracle, or he could take it to the anti-discrimination association that certifies Oracle as discrimination-free.

If his claim has merit, the association would need to ensure that Oracle settles the claim swiftly and fairly, or have its discrimination-free certification revoked. To do otherwise would risk the association’s reputation and tarnish the value of their certifications.

IS THERE ANOTHER WAY TO LOOK AT THE SITUATION?

Of course, this is just one way it could play out. The best part about the free market — wait, is there a single best part? —  is that one person can’t conceive of all the remarkable ways that collaboration and competition can make the world a better place.

On the other hand, you may have noticed some similarities between how a discrimination claim would work in a free market, and how it works with a state-run system. Part of that is because the free market is impossible to get away from completely, and part of it is because my imagination is likely affected by the status quo. The main benefits of the free market vis-a-vis the state-run system are the lack of coercion (in both funding and association) and the opportunities for innovation.

CONCLUSION

In summary, it appears that the Constitutional system isn’t working (since we have unconstitutional bureaucratic judicial pipelines all over the place), and those pipelines don’t work too well either (since they use sketchy math to find problems where no one involved sees a problem). So, do you think a free market system would work better? How do you think it would function? How would you design it?

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Boondoggle-35

The U.S. government is infamously in debt. Since about 2012, the official national debt has equaled or exceeded the GDP. Shockingly, the real fiscal gap is much higher: with our $21.5T GDP and $22.5T official debt, we also have about $200T in unfunded liabilities over the next few decades. Most of that last number is due to programs such as Medicare and Social Security, but our regular debt comes from accumulated deficits: the U.S. government spends more each year than it steals in taxes. Since theft is its primary source of income, this situation is not sustainable.

The single largest item in the 2019 federal budget (contributing heavily to the aforementioned deficits and unfunded liabilities) is Social Security. The second-largest item is defense. The U.S. government spends more on defense than any other country in the world – by far. In fact, it spends about as much as the next eight countries combined. That is to say, the U.S. defense budget is approximately equal to the combined defense budgets of China, Saudi Arabia, India, France, Russia, the United Kingdom, Germany, and Japan.

Is spending of that magnitude necessary, or even remotely justifiable? Probably not. We’ve all heard infamous examples of gross waste and financial incompetence in the DoD – from $21T over a couple of decades that wasn’t correctly accounted for, to $1,280 cups, $999 pliers, and $640 toilet seats.

One of the biggest boondoggles in the U.S. DoD budget – and the focus of this article – is the F-35, AKA the most expensive weapons system in history. And of course, the costs continue to go up, according to a recent DoD report. The Pentagon first put out the project for bids in 1996, and the first F-35s were manufactured and flown in 2006. However, it wasn’t until 2018 that they saw combat for the first time when Israel deployed them. Since then, the USMC, USAF, and RAF have used them in combat only rarely. For a plane that is supposed to be sufficiently versatile and modular to replace virtually all other combat aircraft, the F-35 has been used very little.

Perhaps you’re wondering if this is a typical timeframe for a high-tech military project. Well, in 2001, the DoD expected to have its first combat-capable F-35s in 2010. That did not happen, not by a long shot. At least as late as 2013, these 5th Generation fighter jets could not fly in bad weather or at night. Despite all this, the F-35 program will cost about $1.5T, or approximately what the U.S. government spent on the entire Iraq war.

Last year, Defense News identified thirteen significant deficiencies in one or more F-35 models: from the possibility of a blown tire destroying the entire aircraft, to inadequate vision and sensor systems, to not being to fly too high, too fast, or in certain maneuvers without either apparent or actual major problems. Other issues included logistical and security concerns. Many of these have solutions in progress, although several additional issues with the weapons systems have been identified since then.

How does a project like this happen, and continue, despite perpetual problems? There are 1,400 subcontractors for the F-35 program, spread out over 307 congressional districts in 45 States. For those of you unfamiliar with the U.S. political system, that means there are 307 Congressmen (out of 435) and 90 Senators (out of 100) who have constituents whose livelihoods depend in whole or in part on the F-35 program.

Even the extraordinarily liberal (and openly socialist) Senator Bernie Sanders claims to oppose the program but supports having it partly based in Vermont, so his constituents can benefit from the subcontracting jobs.

It’s not just U.S. politicians who are financially committed to this disaster: there are eight other countries involved in the development of the F-35.

I don’t have a solution to the issues presented here. Really, since I oppose U.S. involvement in all the wars I’m aware of, I don’t really want to see the F-35 used more than it has been. Probably the myriad problems will be solved eventually, and perhaps most of the money to be wasted in this program has already been spent.

So, what’s my point? I want to draw your attention to absurd levels of waste and inefficiencies inherent in the government system, and I want to suggest that such waste is inevitable in the system as it stands.

What do you think? Is the system fixable? How would you fix it, or what system would you replace it with?

 

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Foreign Policy III: AnCapistan

In my first article on foreign policy, I discussed normative foreign policy in the context of the United States Constitution. In the second article, I focused on a specific aspect of foreign policy when I posited that the United States should diplomatically recognize Liberland. In this article, I discuss “foreign policy” in a stateless society: “AnCapistan,” if you will.

What would foreign policy look like in a territory with no government? To someone yet infected with vestiges of statist philosophy, the question is absurd. Such a one may believe foreign policy is the exclusive province of governments.

Strictly speaking, in current political science parlance, this may be true. Britannica defines foreign policy thus: “General objectives that guide the activities and relationships of one state in its interactions with other states.”  In the absence of a state, this definition takes us nowhere. However, practically, an individual can engage in all the usual foreign policy domains: diplomacy, trade, military action, and humanitarian action.

Diplomacy on an individual scale is probably the most straightforward foreign policy activity to engage in, especially with modern technology. Sites like LinkedIn, Facebook, and others let you network with people around the world for business, common interests, etc. The absence of the state simplifies the situation significantly: instead of a few people engaging each other with millions of lives on the line, people would just have to choose to be nice to each other or suffer relatively minor social consequences.

Trade is really a faux element of foreign policy.  While governments obviously do buy things, the vast majority of economic activity is done by private individuals and companies. Governments often interfere in this trade (in the name of foreign policy, usually) with tariffs and other restrictions. In the absence of a state, individuals would be free to choose with whom to trade. If you wanted to punish a group of people by declining to engage in commerce with them, that would be your prerogative. I suspect that this sort of thing would be much less common in a stateless society since it mostly happens only by force under the current paradigm.

Governments often undertake humanitarian action as part of their foreign policy. However, as with everything else, private entities do it better and more efficiently. Organizations like the Red Cross and the Free Burma Rangers engage in humanitarian action far more efficiently than governments can or will. Also, without huge portions of income being stolen through taxation, people would have more resources to share voluntarily. Better yet, they’d have more resources to create and grow enterprises, multiplying resources so many fewer people would need charity.

Military action is possibly the most apparent aspect of foreign policy, and also the one most would assume is the exclusive province of states. However, even now private citizens go to fight ISIS. Americans did the same in the Spanish Civil War. Others fought independently in the Cuban War for Independence. Some of these actions are of dubious legality now, and some might be of questionable morality as well.  Both points could likewise be made about most wars initiated by governments. Naturally, in the absence of a state or states, the legal question would be moot, while the moral issue would become much more clear. Often, bad and pointless wars are blindly supported by people who would know better if they had to write a check or pick up a gun themselves. For an exciting budget film by a U.S. combat Veteran that explores this point indirectly, check out One Man’s Terrorist.

In a territory without government, individuals would be free to be friends with whomever they wanted, trade with whomever they wanted, support whichever side of a military conflict they chose, and offer humanitarian aid to whomever they preferred. Also, without taxes, they’d have more resources to do these things.

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Foreign Policy II: The United States Should Diplomatically Recognize Liberland

In my previous article on Foreign Policy, I discussed normative U.S. foreign policy in the context of the Constitution. In this article, I focus on a particular aspect of U.S. foreign policy when I posit that the U.S. should recognize Liberland diplomatically.

I’ll briefly summarize the history of Liberland for those who are unfamiliar with this nascent state. On April 13, 2015, a Czech politician named Vít Jedlička created the Free Republic of Liberland on 2.7 square miles of terra nullius known as Siga on the western bank of the Danube River between Croatia and Serbia. The area had previously belonged to Serbia until the river’s course changed. Both Croatia and Serbia deny any claim to the region. Since then, notable developments include the following: several hundred thousand people have applied for citizenship, Liberland has signed a memorandum of understanding with Somaliland (a self-governing autonomous region of Africa with a democratically elected government), Liberland passports have been accepted in ten countries, and Liberland has signed a bilateral treaty with IIMSAM (the Intergovernmental Institution for the Use of Micro-Algae Spirulina Against Malnutrition), an intergovernmental observer to the United Nations Economic and Social Council. Seven members of the Polish Parliament have urged the Polish Ministry of Foreign Affairs to recognize Liberland. However, no member of the United Nations has diplomatically recognized Liberland.

Current international law on statehood is the Montevideo Convention, which outlines four qualifications for statehood, all of which Liberland meets, and none of which include recognition by other states. “The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”

Let’s compare Liberland to some other small sovereign entities:

Liberland passports are recognized in more countries than those of the Turkish Republic of Northern Cyprus, which are only accepted by about six states, including notably the U.S., the U.K., and Australia.

The Sovereign Military Order of Malta is a non-state with no land but with full diplomatic relations with over 100 countries, not including the U.S.

Liberland is geographically larger than two recognized countries combined: Monaco, and Vatican City.

Recognition of Liberland would not infringe on any other countries’ territorial claims. The land traditionally belonged to Serbia, but they have forsaken any claim to it, saying that the new state of Liberland does not infringe on their territory. Croatia has also explicitly denied any claim to it, saying it is between Croatia and Serbia.

Image: Serbian statement that the “new state” of Liberland is not on Serbian territory.

The U.S. is still a world leader, even as the empire is crumbling. It doesn’t need approval from others to recognize a passport or extend diplomatic recognition to a new state. As a country founded on freedom, the U.S. should appreciate the kindred spirit of Liberland. Despite its increasingly strained relationship with the concept of freedom, citizens of the U.S. commonly believe themselves to reside in the freest country on the planet. Typically wars are justified by claims that they defend U.S. freedom or spread freedom or democracy. U.S. citizens should, therefore, support a country based on freedom — especially one intentionally founded on U.S. President Jefferson’s birthday.

There’s no reason for the U.S. to continue denying Liberland full diplomatic recognition; there are plenty of reasons to recognize Liberland immediately.

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Foreign Policy, Part I

While I favor Agorism, Voluntaryism, and Anarcho-Capitalism, I do have a solid knowledge base on the United States Constitutional Republic. This article will focus on normative foreign policy in this context,  and later articles will deal with more philosophically palatable foreign policy questions. While I have studied politics and related topics intensely and broadly (my B.A. in Political Science represents the minority of my accumulated relevant knowledge), I do readily admit that I’m far from an expert on foreign policy. I’ll be learning as I write.

Let’s go through the U.S. Constitution, and see what we can learn along the way.

Article 1, Section 8, Clause 3: “[The Congress shall have Power] To regulate Commerce with foreign Nations…” What should U.S. foreign policy on trade be? Laissez-faire. Free trade with all, for all. No tariffs, period. Why? Because:

1.) it’s the right thing to do and

2.) it’s better for the economy and

3.) as always, taxation is theft.

Perhaps you doubt me. Think about it this way: countries do not trade with each other, but individuals trade with other individuals in the same country and foreign countries. It is not within the purpose of government to give some individuals an economic advantage over others, even if those individuals reside in separate countries. This point segues into the second one with the observation that tariffs give one segment of the domestic population advantage over other parts. Let’s take the recent steel tariffs for example. While they may have helped some domestic steel manufacturers by raising their foreign competitors’ prices and thus encouraging American consumers to purchase more domestic steel and less foreign steel, the cost is passed on to the entire rest of the country who now has to pay more for steel than they otherwise would have. This artificial price manipulation is dangerous for the economy, in part because the increased cost of steel takes funds away from other endeavors, with limitless potential for helping the economy. Regarding the third point, (#TaxationIsTheft) I’ll just refer you to this meme I stole from someone on Facebook.

Article 1, Section 8, Clause 10: “[The Congress shall have Power] To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations…” The “Law of Nations” does not refer to International Law as some may suppose. Blackstone’s Commentaries on the Laws of England — an authoritative tome on common law with which the Founders were intimately familiar and to which they referred frequently — explains it. “The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world…. offences against the law of nations can rarely be the object of the criminal law of any particular state. For offences against this law are principally incident to whole states or nations…. The principal offences against the law of nations … are of three kinds; 1. Violation of safe-conducts [as in war]; 2. Infringement of the rights of ambassadors; and, 3. Piracy.” There’s more involved in the “Law of Nations,” including the Law Merchant (a fascinating topic about which I’ll write one day) but this is the most relevant part for our purposes today. This clause touches slightly on foreign policy. Essentially, the U.S. should courteously refrain from violating the customs of international interactions as well as provide for discouraging the small possibility of their citizens doing the same. In the context of a Constitutional Republic, this is all good and proper.

Article 1, Section 8, Clause 11: “[The Congress shall have Power] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water…” Here we have a power that is over-used and a power that is under-used. Congress has not declared war since World War II, but the U.S. has been at war somewhere all but five years since then. If the country is going to be at war, make it official. Or not, I guess. The Constitution provides for making it unofficially official. The Letters of Marque and Reprisal is probably the most underutilized of all the Congressional powers. This clause empowers Congress to commission privateers and mercenaries to go after enemies for profit. Congress should not be going to war willy-nilly all the time. After 9/11, Congress could have put a billion dollar bounty on Bin Laden and saved a few trillion dollars and untold human lives.

Article 2, Section 2, Clause 2: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties … and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls….” This section deals rather directly with foreign policy and diplomatic relations; it is the part that George Washington famously cautioned about in his farewell address.  As we know, a system that depends on persistent suppression of human nature dooms itself from the start. We now have many “entangling alliances,” even though the first man in charge understood the danger and explicitly warned future leaders in a permanent record! The lesson about human nature here is more important than the lesson about treaties.

That’s pretty much all I could find in the Constitution about foreign policy. In the next part of this series, I plan to discuss why the U.S. should recognize Liberland diplomatically.

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What Should Liberland Firearms Policy Look Like?

Liberland is widely touted as a libertarian state. The motto, “To live and let live,” supports this idea. Liberland.org notes that “Liberland prides itself on personal and economic freedom of its people.” The current draft of the Constitution of the Free Republic of Liberland includes a guarantee of personal firearms freedom. Let’s consider libertarian gun policy objectively, and then we’ll see how Liberland stacks up to this ideal.

A libertarian gun policy would involve a strict application of the zero aggression principle, and little to no government involvement. What would gun laws look like if these concepts were implemented correctly? Let’s take a look.

What does a libertarian policy for firearms possession look like? Many jurisdictions require registration of some or all firearms. Other jurisdictions prohibit ownership of certain classes of weapons, such as semiautomatic pistols, fully automatic guns, or large bore rifles (above .50 caliber). Sometimes, a permit is required to own a firearm, and the permit can be a form of registration if the type of weapon or even the serial number is recorded in the permitting process. Often, membership in a shooting club is a prerequisite for firearms ownership. A libertarian policy on firearms possession would undoubtedly not involve firearms registration, de facto or otherwise. That would be too much government interference, with little to no actual benefit. (To say nothing of the risk of democide under a less friendly administration, but that’s another matter.) The prohibitions on classes of firearms would be nil, per the zero aggression principle: if you’re not hurting anyone with the weapon, why shouldn’t you be free to own it? Club membership would never be a condition of firearms ownership, as that would violate the zero aggression principle in the course of violating freedom of association.

What does a libertarian policy for firearms transfer look like? Current laws and proposals in many countries require a background check before a transfer, or they demand that transfers be made only by or through a licensed firearms dealer. Certain classes of people are prohibited from owning firearms, and thus from having them transferred to them. Some jurisdictions restrict firearms purchases to one gun per month or impose a waiting period on the purchase process. A libertarian policy on firearms transfer would generally leave people free to buy, sell, or otherwise transfer firearms without government restrictions on spontaneous or frequent purchases. No license would be necessary to be in the business of selling firearms. Regarding individuals who may not be competent to own a gun: children, criminals, and the mentally ill, there may be restrictions within a libertarian framework. Children would be allowed to purchase firearms with the approval of their parents. Criminals who are free to walk the streets should be free to legally buy a gun for the lawful defense of themselves and their families, just like anyone else. If an individual has been adjudicated mentally incompetent or dangerous to themselves or others, they could be restricted from purchasing a firearm. A background check system could be made available to anyone who wishes to confirm that their potential buyer has not been legally determined mentally incompetent or dangerous.

What does a libertarian policy for firearms components look like? Firearms components can be anything from an AR-15 upper receiver to a 100 round drum, to a full-auto drop sear. Under United States law, a full-auto drop sear used to be legal to own without restriction — but is now treated the same as an actual machine gun. Upper receivers are typically unrestricted, meaning you can buy them without paperwork, even having them shipped to your door. Magazines are often restricted based on their capacity, with 10 or 15 round limits being normal. A libertarian policy on firearms components would be very hands-off, with little to no government interference. All firearms components would be legal to buy, sell, or use, without restrictions.

What does a libertarian policy for firearms accessories look like? Firearms accessories can be anything from an ammo carrier on a buttstock to an optic to a suppressor to a forward pistol grip. Different jurisdictions regulate these in various ways. Suppressors are often treated like firearms, or even as a particular, restricted class of weapons, even though they are just a firearm muffler. Other firearm accessories are legal to own and easy to buy, but they can only be mounted on certain weapons without doing paperwork and paying a tax, or they can only be used in specific ways. For example, under U.S. law a forward pistol grip can be mounted on a rifle, but not on a pistol, and a wrist brace can be installed on an AR pistol unless you plan to place it against your shoulder. Seriously. BATFE keeps vacillating on that one, so be sure to check the latest official letter if you want to avoid a SWAT raid. Of course, if you think Ruby Ridge or Waco were as good ways to go as any, then just enjoy pretending it’s still a free country. But, I digress. A libertarian policy on firearms accessories would involve little to no government involvement. Basically, there would be no policy on firearms accessories. Anybody would be free to buy, sell, or use them without restrictions.

What does a libertarian policy for firearms carry look like? Firearms carry is typically divided artificially into two classes: open carry, and concealed carry. Some jurisdictions (like Florida) restrict open carry while leaving concealed carry freer; others (like Ohio) take the opposite tack by limiting concealed carry and leaving open carry unregulated. Sometimes, open carry is further divided between open carry of long guns and open carry of handguns. Typically, open carry of long guns is the least regulated method of carrying, whether because it is the least common (and thus forgotten by legislators) or out of deference to hunting traditions. A libertarian policy on firearms carry would enforce the zero aggression principle on all sides. So, you would be free to carry either long guns or handguns, either openly or concealed, so long as you refrained from pointing them at other people, or otherwise actually threatening them. Owners of a property would be entirely free to set policies restricting carry in whatever manner and to whatever degree they wished on that property, but these restrictions would have very limited legal consequences. Violating such a policy would be the most minor of civil infractions, requiring you to leave the location immediately, with no fine, probation, or jail time.

We’ve seen how libertarian philosophy applies to firearms policies of possession, transfer, carry, components, and accessories. In short, the government would take a hands-off approach, minimizing interference, and refraining from criminalizing activities that don’t hurt other people. Now, let’s look at the Liberland Constitution and see how it aligns with this standard.

Liberland Constitution §XIV.2. All Individuals shall have the right to own, manufacture, sell, transfer, transport, bear and use any small arms, as defined internationally, arms accessories or ammunition, be they historic, contemporary and/or experimental, regardless of condition; no form of licensing and/or registration shall be used to infringe upon these rights; the Person in charge of the premises shall determine whether arms may be carried on such premises except for Agents of Law Enforcement where acting pursuant to, and within the limits of, a Warrant.

Looks like it holds up pretty well, overall. My main hesitation is that it only protects “small arms,” and furthermore leaves that definition to a nebulous and vague international entity or entities. One might reasonably assume that this clause refers to the UN definition, which excludes even an M240L machine gun. A nation founded on a libertarian conception of freedom can undoubtedly do better than this, but it’s clear that a sincere effort has been made.


An early version of this article is published on MisesUK.org, and this article has been published on LiberlandPress.com.

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