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October 25, 2017

[liveblog] John Palfrey’s new book (and thoughts on rules vs. models)

John Palfrey is doing a launch event at the Berkman Klein Center for his new book, Safe Spaces, Brave Spaces: Diversity and Free Expression in Education. John is the Head of School at Phillips Academy Andover, and for many years was the executive director of the Berkman Klein Center and the head of the Harvard Law School Library. He’s also the chairman of the board of the Knight Foundation. This event is being put on by the BKC, the Law Library, and Andover. His new book is available on paper, or online as an open access book. (Of course it is. It’s John Palfrey, people!)

[Disclosure: Typical conversations about JP, when he’s not present, attempt — and fail — to articulate his multi-facted awesomeness. I’ll fail at this also, so I’ll just note that JP is directly responsible for my affiliation with the BKC and and for my co-directorship of the Harvard Library Innovation Lab…and those are just the most visible ways in which he has enabled me to flourish as best I can. ]

Also, at the end of this post I have some reflections on rules vs. models, and the implicit vs. explicit.

NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.

John begins by framing the book as an attempt to find a balance between diversity and free expression. Too often we have pitted the two against each other, especially in the past few years, he says: the left argues for diversity and the right argues for free expression. It’s important to have both, although he acknowledges that there are extremely hard cases where there is no reconciliation; in those cases we need rules and boundaries. But we are much better off when we can find common ground.

“This may sound old-fashioned in the liberal way. And that’s true,” he says. But we’re having this debate in part because young people have been advancing ideas that we should be listening to. We need to be taking a hard look.

Our institutions should be deeply devoted to diversity, equity and inclusion. Our institutions haven’t been as supportive of these as they should be, although they’re getting better at it, e.g. getting better at acknowledging the effects of institutional racism.

The diversity argument pushes us toward the question of “safe spaces.” Safe spaces are crucial in the same way that every human needs a place where everyone around them supports them and loves them, and where you can say dumb things. We all need zones of comfort, with rules implicit or explicit. It might be a room, a group, a virtual space… E.g., survivors of sexual assault need places where they know there are rules and they can express themselves without feeling at risk.

But, John adds, there should also be spaces where people are uncomfortable, where their beliefs are challenged.

Spaces of both sorts are experienced differently by different people. Privileged people like John experience spaces as safe that others experience as uncomfortable.

The examples in his book include: trigger warnings, safe spaces, the debates over campus symbols, the disinvitation of speakers, etc. These are very hard to navigate and call out for a series of rules or principles. Different schools might approach these differently. E.g.,students from the Gann Academy are here tonight, a local Jewish high school. They well might experience a space differently than students at Andover. Different schools well might need different rules.

Now John turns it over to students for comments. (This is very typical JP: A modest but brilliant intervention and then a generous deferral to the room. I had the privilege of co-teaching a course with him once, and I can attest that he is a brilliant, inspiring teacher. Sorry, but to be such a JP fanboy, but I am at least an evidence-based fanboy.) [I have not captured these student responses adequately, in some cases simply because I had trouble hearing them. They were remarkable, however. And I could not get their names with enough confidence to attempt to reproduce them here. Sorry!]

Student Responses

Student: I graduated from Andover and now I’m at Harvard. I was struck by the book’s idea that we need to get over the dichotomy between diversity and free expression. I want to address Chapter 5, about hate speech. It says each institution ought to assess its own values to come up with its principles about speech and diversity, and those principles ought to be communicated clearly and enforced consistently. But, I believe, we should in fact be debating what the baseline should be for all institutions. We don’t all have full options about what school we’re going to go to, so there ought to be a baseline we all can rely on.

JP: Great critique. Moral relativism is not a good idea. But I don’t think one size fits all. In the hardest cases, there might be sharpest limits. But I do agree there ought to be some sort of baseline around diversity, equity, and inclusion. I’d like to see that be a higher baseline, and we’ve worked on this at Andover. State universities are different. E.g., if a neo-Nazi group wants to demonstrate on a state school campus and they follow the rules laid out in the Skokie case, etc., they should be allowed to demonstrate. If they came to Andover, we’d say no. As a baseline, we might want to change the regulations so that the First Amendment doesn’t apply if the experience is detrimental to the education of the students; that would be a very hard line to draw. Even if we did, we still might want to allow local variations.

Student: Brave spaces are often build from safe spaces. E.g., at Andover we used Facebook to build a safe space for women to talk, in the face of academic competitions where misogyny was too common. This led to creating brave places where open, frank discussion across differences was welcomed.

JP: Yes, giving students a sense of safety so they can be brave is an important point. And, yes, brave spaces do often grow from safe spaces.

Andover student: I was struck by why diversity is important: the cross-pollination of ideas. But from my experience, a lot of that hasn’t occurred because we’re stuck in our own groups. There’s also typically a divide between the students and the faculty. Student activitsts are treated as if they’re just going through a phase. How do we bridge that gap?

JP: How do we encourage more cross-pollination? It’s a really hard problem for educators. I’ve been struck by the difference between teaching at Harvard Law and Andover in terms of the comfort with disagreeing across political divides; it was far more comfortable at the Law School. I’ve told students if you present a paper that disagrees with my point of view and argues for it beautifully, you’ll do better than parroting ideas back to me. Second, we have to stop using demeaning language to talk about student activists. BTW, there is an interesting dynamic, as teachers today may well have been activists when they were young and think of themselves as the reformers.

Student: [hard to hear] At Andover, our classes were seminar-based, which is a luxury not all students have. Also: Wouldn’t encouraging a broader spread of ideas create schisms? How would you create a school identity?

JP: This echoes the first student speaker’s point about establishing a baseline. Not all schools can have 12 students with two teachers in a seminar, as at Andover. We need to find a dialectic. As for schisms: we have to communicate values. Institutions are challenged these days but there is a huge place for them as places that convey values. There needs to be some top down communication of those values. Students can challenge those values, and they should. This gets at the heart of the problem: Do we tolerate the intolerant?

Student: I’m a graduate of Andover and currently at Harvard. My generation has grown up with the Internet. What happens when what is supposed to be a safe space becomes a brave space for some but not all? E.g., a dorm where people speak freely thinking it’s a safe space. What happens when the default values overrides what someone else views as comfortable? What is the power of an institution to develop, monitor, and mold what people actually feel? When communities engage in groupthink, how can an institution construct space safes?

JP: I don’t have an easy answer to this. We do need to remember that these spaces are experienced differently by different people, and the rules ought to reflect this. Some of my best learning came from late night bull sessions. It’s the duty of the institution to do what it can to enable that sort of space. But we also have to recognize that people who have been marginalized react differently. The rule sets need to reflect that fact.

Student: Andover has many different forum spaces available, from hallways to rooms. We get to decide to choose when and where these conversations will occur. For a more traditional public high school where you only have 30-person classroom as a forum, how do we have the difficult conversations that students at Andover choose to have in more intimate settings?

JP: The size and rule-set of the group matters enormously. Even in a traditional HS you can still break a class into groups. The answer is: How do you hack the space?

Student: I’m a freshman at Harvard. Before the era of safe spaces, we’d call them friends: people we can talk with and have no fear that our private words will be made public, and where we will not be judged. Safe spaces may exclude people, e.g., a safe space open only to women.

JP Andover has a group for women of color. That excludes people, and for various reasons we think that’s entirely appropriate an useful.

Q&A

Q [Terry Fisher]: You refer frequently to rule sets. If we wanted to have a discussion in a forum like this, you could announce a set of rules. Or the organizer could announce values, such as: we value respect, or we want people to take the best version of what others say. Or, you could not say anything and model it in your behavior. When you and I went to school, there were no rules in classrooms. It was all done by modeling. But this also meant that gender roles were modeled. My experience of you as a wonderful teacher, JP, is that you model values so well. It doesn’t surprise me that so many of your students talk with the precision and respectfulness that you model. I am worried about relying on rule sets, and doubt their efficacy for the long term. Rather, the best hope is people modeling and conveying better values, as in the old method.

JP: Students, Terry Fischer was my teacher. May answer will be incredibly tentative: It is essential for an institution to convey its values. We do this at Andover. Our values tell us, for example, that we don’t want gender-based balance and are aware that we are in a misogynist culture, and thus need reasonable rules. But, yes, modeling is the most powerful.

Q [Dorothy Zinberg]: I’ve been at Harvard for about 70 yrs and I have seen the importance of an individual in changing an institution. For example, McGeorge Bundy thought he should bring 12 faculty to Harvard from non-traditional backgrounds, including Erik Erikson who did not have a college degree. He had been a disciple of Freud’s. He taught a course at Harvard called “The Lifecycle.” Every Harvard senior was reading The Catcher in the Rye. Erikson was giving brilliant lectures, but I told him it was from his point of view as a man, and had nothing to do with the young women. So, he told me, a grad student, to write the lectures. No traditional professor would have done that. Also: for forming groups, there’s nothing like closing the door. People need to be able to let go and try a lot of ideas.

Q: I am from the Sudan. How do you create a safe space in environments that are exclusive. [I may have gotten that wrong. Sorry.] How do you acknowledge the native American tribes whose land this institution is built on, or the slaves who did the building?

JP: We all have that obligation. [JP gives some examples of the Law School recently acknowledging the slave labor, and the money from slave holders, that helped build the school.]

Q: You used a kitchen as an example of a safe space. Great example. But kitchens are not established or protected by any authority. It’s a new idea that institutions ought to set these up. Do you think there should be safe spaces that are privately set up as well as by institutions? Should some be permitted to exclude people or not?

(JP asks a student to respond): Institutional support can be very helpful when you have a diversity of students. Can institutional safe spaces supplement private ones? I’m not sure. And I do think exclusive groups have a place. As a consensus forms, it’s important to allow the marginalized voices to connect.

Q [ head of Gann]: I’m a grad of Phillips Academy. As head of a religious school, we’re struggling with all these questions. Navigating these spaces isn’t just a political or intellectual activity. It is a work of the heart. If the institution thinks of this only as a rational activity and doesn’t tend to the hearts of our students, and is not explicit about the habits of heart we need to navigate these sensitive waters, only those with natural emotional skills will be able to flourish. We need to develop leaders who can turn hard conversations into generative ones. What would it look like to take on the work of developing social and emotional development?

JP: Ive been to Gann and am confident that’s what you’re doing. And you can see evidence of Andover’s work on it in the students who spoke tonight. Someone asked me if a student became a Nazi, would you expel him? Yes, if it were apparent in his actions, but probably not for his thoughts. Ideally, our students won’t come to have those views because of the social and emotional skills they’re learning. But people in our culture do have those views. Your question brings it back to the project of education and of democracy.

[This session was so JP!]

 


 

A couple of reactions to this discussion without having yet read the book.

First, about Prof. Fisher’s comment: I think we are all likely to agree that modeling the behavior we want is the most powerful educational tool. JP and Prof. Fisher, are both superb, well, models of this.

But, as Prof. Fisher noted in his question, the dominant model of discourse for our generation silently (and sometimes explicitly) favored males, white middle class values, etc. Explicit rules weren’t as necessary because we had internalized them and had stacked the deck against those who were marginalized by them. Now that diversity has thankfully become an explicit goal, and now that the Internet has thrown us into conversations across differences, we almost always need to make those rules explicit; a conversation among people from across divides of culture, economics, power, etc. that does not explicitly acknowledge the different norms under which the participants operate is almost certainly going to either fragment or end in misunderstanding.

(Clay Shirky and I had a collegial difference of opinion about this about fifteen years ago. Clay argued for online social groups having explicit constitutions. I argued
for the importance of the “unspoken” in groups, and the damage that making norms explicit can cause.)

Second, about the need for setting a baseline: I’m curious to see what JP’s book says about this, because the evidence is that we as a culture cannot agree about what the baseline is: vociferous and often nasty arguments about this have been going on for decades. For example, what’s the baseline for inviting (or disinviting) people with highly noxious views to a private college campus? I don’t see a practical way forward for establishing a baseline answer. We can’t even get Texas schools to stop teaching Creationism.

So, having said that modeling is not enough, and having despaired at establishing a baseline, I think I am left being unhelpfully dialectical:

1. Modeling is essential but not enough.

2. We ought to be appropriately explicit about rules in order to create places where people feel safe enough to be frank and honest…

3. …But we are not going to be able to agree on a meaningful baseline for the U.S., much less internationally — “meaningful” meaning that it is specific enough that it can be applied to difficult cases.

4. But modeling may be the only way we can get to enough agreement that we can set a baseline. We can’t do it by rules because we don’t have enough unspoken agreement about what those rules should be. We can only get to that agreement by seeing our leading voices in every field engage across differences in respectful and emotionally truthful ways. So at the largest level, I find I do agree with Prof. Fisher: we need models.

5. But if our national models are to reflect the values we want as a baseline, we need to be thoughtful, reflective, and explicit about which leading voices we want to elevate as models. We tend to do this not by looking for rules but by looking for Prof. Fisher’s second alternative: values. For example, we say positively that we love John McCain’s being a “maverick” or Kamala Harris’ careful noting of the evidence for her claims, and we disdain Trump’s name-calling. Rules derive from values such as those. Values come before rules.

I just wish I had more hope about the direction we’re going in…although I do see hopeful signs in some of the model voices who are emerging, and most of all, in the younger generation’s embrace of difference.

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January 16, 2014

CityCodesAndOrdinances.xml

A friend is looking into the best way for a city to publish its codes and ordinances to make them searchable and reusable. What are the best schemas or ontologies to use?

I work in a law school library so you might think I’d know. Nope. So I asked a well-informed mailing list. Here’s what they have suggested, more or less in their own words:


Any other suggestions?

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November 20, 2009

Cory Doctorow in support of copyright

In this edition of Radio Berkman, Cory Doctorow argues in favor of copyright … the part of copyright that protects the rights of readers to own (and not just license) books.

It being Cory, the discussion covers topics such as the way in which books are like dogs and his sentimental attachment to his digital collection.

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October 22, 2009

New online journal

“In the spirit of Open Access week” (writes John Palfrey), Harvard’s Civil Rights-Civil Liberties Law Review is today launching a new online publication. The new publication is Amicus. The idea is for law journals and other institutions to publish “as a supplement to their regular mode, shorter, open pieces formatted for the web that have serious work behind them and which link more actively to other arguments, online and offline.”

John contributes his own excellent essay, about the rhetorical spaces of the Internet: From the intro:

In this essay, I explore several of the privacy and speech problems that arise in the context of lives partially mediated by digital technologies. I conclude by arguing that we should focus not just on the civil rights and civil liberties problems, but also on the opportunities afforded by life in these new public spaces online.

Amicus joins the Berkman Center’s Publius in the open square of the Net…

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Ask your senator to add midwifery to Medicaid

Now, as health care reform is being debated, would be an excellent time to ask your friendly local Senators to support adding Certified Public Midwifery to the list of healthcare providers who can receive Medicaid funds.

CPM’s are trained professionals. They are not nurse midwives and thus send women into the “regular” health care system when the women are at risk in any way. But, if you are pregnant, not at risk, and want a home birth, a CPM is the person to call. CPMs are hugely dedicated women who work long hours for little pay because they love healthy women and their healthy babies [1 2 3 4]. I say this as a proud parent of a CPM.

You can find your Senator’s email address here.

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October 6, 2009

[berkman] The Law Lab

John Clippinger and Oliver Goodenough, co-directors of Berkman’s Law Lab are giving a lunchtime talk.

NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.

Urs Gasser introduces them by giving some background on the Law Lab. It arose out of a 2008 workshop on innovation. How could we think in innovative ways about the law? How does law work in a digitally networked environment? How does governance play? The Law Lab is a rich environment, open for collaboration, that does research, explores ideas.

John says that the mission is about multidisciplinary and collaborative research: evolutionary, neurological, and computational sciences, not to mention psych, sociology, law and economics. It aims at doing experimental research in the wild. It will create open technology “for governance and mechanism design — private production of norms, rules, common law and statutes.”

From John’s view, the Law Lab is called for now because of the merger of the physical and the digital, the accelerated rate of evolution, the inability of legal and legislative processes to keep page, the under-investment in tech for the legal sector, the globalization and privatization of jurisdictions and rule making, and the rise of total surveillance.

The Law Lab is building an “open governance platform.” First, they’re building an identity system (“persistent, contextual, mobile, pseudo-anonymous”). “You can’t have trusted systems without some form of identity authentication.” 2. Reputation systems. 3. Dispute resolution. 4. Credit assignment (“multiple, independent, convertible currencies”). 5. Authentication of claims about attributes such as age and income. 6. Balloting and voting. 7. Metadata analysis (“transparency, tracking, behavioral anaysis”). 8. Enforcement.

For example, the Law Lab has developed I-Cards, a way of authenticating without using passwords. It’s now on the iPhone.

John is also interested in whether contracts and laws can “evolve over time to protect fairness and transparency?” … evolve algorithmically over time. The Law Lab has teamThere’s a “soft-paternalism” in their first approach, making some decisions for you.ed up with Conceptnet at MIT and created their own conceptnet for legal concepts. Then they created a term sheet as a model and a test. They LISP-encoded it and modelled it under different conditions. With different shareholders, what happens?

There’s also a Gov. 2.0 platform, partnered with the O’Reilly Group. Rather than gov’t as a dispenser of services, it could be an enabler of services. Finance 3.0 would put financial data into XBRL. We could use data aggregation and visualization to manage risk (e.g., Palantir on mortgage backed securities). There’s an initiative to create a National nstitute of Finance. Also, the Law Lab has been involved in the Open Trust Framework.

Next for the Law Lab: An open platform for conducting experiments using web tools and services (e.g., Scriptgen). Also, it’s partnering with MIT Media Lab on developing open gov’t platform and pilot applications. The Law Lab wants to do experiments on group formation, differentiation and cooperation. Also, it’s partnewring with the Aspen Institute (gov’t 2.0) and the Santa Fe Institute (evolvable contracts).

Oliver Goodenough talks about his Vermont Digital Companies project. He says the Law Lab has three tracks: Pure-ish research (Yochai) . Applications Oliver). Straddling those two (John C.). The purpose of the Application Track “develops and disseminates applications, rooted in digital tech, that help law to meet the needs of innovators and entrepreneurs.”

What happens when you put institutions into the digital world? In VT they’re going to “use sw to create platforms for private legal structuring: agreement and execution.” It’s about halfway through the process leading up through deployment. VT changed its law of business organization in 2008. It enabled a digital interface for filing for corporate status. It allowed the use of communication media that allow a back and forth. But what’s new is that it allows digital originals of by-laws, operating agreements, etc. The sw isn’t just a way of using what you had in writing, but can be the original . VT also fixed the tax laws.

This permits “expanding opportunities and increasing the birth of firms.” Lower cost. New institutions of economic cooperation. Low-capital companies. A company could be formed even if it were fully digital and the employees and founders had never met in meat space. While there are companies that advertise online incorporation, they send out paper forms, etc.

Challenges: 1. How much standardization? 2. Disputes and dispute resolution. 3. Liquidity: sale and withdrawal. There’s a “soft-paternalism” in their first approach, making some decisions for you because, at least initially, it’s too hard to put in complex choice processes. (At the moment, it’s aimed at small working groups — five, not five thousand.)

Next steps: Looking for partners and adopters (including LinkedIn and Facebook developers), and implementing deployment. It should be out this fall. It’s open source.

For the future: There could be a Cambrian explosion. Also, they’re working on taking it to non-profits. And beyond VT.

Q: What about spoofing attacks? Are you including the authentication stuff John talked about?
J: Yes. I-Cards are a first effort to do that. (That’s not something we’re doing; it’s a much bigger effort.) There will be different levels of assurance.

Q: How smoothly does the sw keep up with the changes. If the company wants to change rules that are not supported by the program (e.g., majority rule), you’d have to wait for a programmer…
O: Yes, but you can also opt out of the program.
J: The platform idea is to make a componentized architecture so new voting mechanisms or dispute resolution mechanisms can be swapped in.
O: We started with the simple version…

Q: [terry fisher] This gives a great sense of the range of stuff you’re doing. But, what are the goals? It seems like there are four: 1. Efficiency — mechanisms so people can do more efficiently what they’ve been doing traditionally. 2. Accessibility — make this available to, for example, people without a lot of capital. 3. Visionary — Trust, authentication, etc. are about stabilizing the person in the virtual space in a way that is controversial. E.g., it’s not the multi-avatar vision. 4. Libertarianism — a lack of faith in legislation and adjudication in their traditional forms, and people outside of the traditional gov’t ambits can better devise rules and mechanisms for enforcing them.

J: There’s a body of literature that talks about how signaling, brain science, evolution, reputations, work. It’s not particularly libertarian. Part of the Law Lab’s goal is to leverage the research and brings it into governance. The question of how citizens can create law is an experiment.
Terry: But you’re creating toolsets that make some things easier than others…
J: This comes from studying biology. ARe these required components to get self-governance?
O: You posed the question as if there were a dichotomy between gov’t regulation and citizen evolution of regulation. But it’s not an opposition. These are both tools that have uses. And, as far as stabilizing identities: The Net is good at supporting multiple identities, but that’s not how you need to present yourself for accomplishing certain types of goals. There are places where the openness is completely appropriate and to be celebrated, but that’s not mutually exclusive from having authenticatable identities.
J: You can have a variety of identities. You can be authenticated and anonymous. The system is designed to support this plurality of identities.
O: We’re exploring these things because they’re properties of the Net.
J: The gov’t 2.0 platform is supported by this new administration, but then the issue of trust between gov’t and citizen becomes very important.

Q: If contracts and laws are defined by computer code, what happens if it has a bug?
O: It means your code has to be good. It’ll never be bug-free, but neither will a partnership agreement. And you can export a static, digitally-signed agreement as a fallback.

Q: What’s your vision for what will substitute for the current process by which attorneys explain what the contracts mean, and the redlining process…?
O: We assume with the current version that the people have attorneys. The more complicated tools may be lawyer tools.

Q: What are you doing that legalzoom doesn’t?
A: LZ throws you back into the old pen and paper world. We automate the entire life history of a company…
J: You can crate a new form of governance. You dion’t have to have a b

Q: [me] How are you opening this up, making it collaborative?
J: We’re just getting started. We’ve had some workshops in DC. There’s been a lot discussion around the identity stuff. Before the new identity platforms arose we were going to have a top-down, draconian, Orwellian system. As you design these new mechanisms, you’re designing new types of institutions. Little decisions can have major implilcations. We need lots of security. The cybersecurity efforts are intense in DC now. There probably won’t be a cyber czar. They’ll outsource identity, privatizing a major function. These are all complex issues. It’s hard to get a group around it to engage with it.
Urs: John’s platform is different than Oliver’s. John’s platform is much more at the conceptual level to see what an open platform would be like. It’s about creating interoperatbility based on an understanding of the key ingredients you’d need for open gov’t. We’re not making decisions about how the identity tool or reputation is built. We want to see what would be required in a platform to enable these things to be built. It’s much more about networking.

Q: Are you missing out on how these tools could change how we think about low. E.g., property.
J: I’m very interested in rethinking the fundamentals of law. E.g., social signaling studies how people go from informal to codified interactions? We need to uncover how the brain works socially.
O: One of the goals of digital institutions is to make it possible for people to organize in new ways, not the stock capital-based ones.

Q: Internationally, there are differences over the nature of privacy. It’d be very cool to have a tool where you had info about how the right to privacy has been enforced in the case law that’s developing across the globe.
O: Would love to do that.

Q: Using algorithms in contracts is really intriguing. But what happens if the one you want to write is patented?
O: It’s unclear where business methods are going wrt patentability.

Urs: I like being involved in the Law Lab because you get exposure to new ideas. E.g., some of John’s ideas are unfamiliar and uncomfortable for lawyers. But that’s a good thing. And keep in mind that this is a lab, so there are many more questions than answers.

[John Clippinger is a mad scientist, in the best sense. Looking forward to what emerges from the Law Lab…]

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