What really happened in Dubai?

When I stopped monitoring the WCIT process around 5:30 pm (CET) December 13, it appeared that the delegations were attempting to finalize something very close to a consensus document. The almost-final draft of the ITRs that I reviewed at that time did not mention the Internet by name at all – a victory for Internet defenders. The all-important Article 9, under which most international Internet interconnections are made, had not been significantly altered. There was no language about cybersecurity. There may have been a few subtleties here or there that were not perfect, but on the whole this was a set of ITRs that could have been passed.

The only downside was a plenary resolution entitled “To foster an enabling environment for the greater growth of the Internet.” This resolution, which (contrary to some inaccurate reporting) was not part of the ITR treaty and thus not a legally binding outcome, was a sop to the states that want the ITU to have a foothold in Internet governance. It reiterated some of the more statist aspects of the WSIS Tunis Agenda and resolved that the ITU SG should:

…continue to take the necessary steps for ITU to play an active and constructive role in the multi-stakeholder model of the Internet as expressed in § 35 of the Tunis Agenda;

…support the participation of Member States and all other stakeholders, as applicable, in the activities of the ITU in this regard.

While western delegations opposed this resolution and there were some legitimate concerns about the process by which it was or was not passed, it could be seen as a pretty clever, diplomatic way of resolving the basic conflict afflicting WCIT: keep the pro-ITU states happy with some minor concessions related to the ITU role in Internet governance, but couch it in vague terms about “fostering an enabling environment” and put it all in a nonbinding plenary resolution where it can’t do any real damage. It looked like the final outcome would rest on that bargain.

When I returned from a late dinner around 11:00 pm, however, I was greeted by several hundred tweets and dozens of news reports that the WCIT negotiations had “collapsed.” Not one of them that I examined really explained why. US delegation members, despite all the talk about openness and participation in Internet governance, were forced to remain mum.

So what happened?

It took some digging, but one possible reason for the “collapse” has emerged. A group of African nations attempted to insert words about the the rights of member states to access telecommunications networks (T09-WTSA 12-C-0064). Opposition was expressed. A vote was held. The amendment passed by a vote of vote 77 for, 33 against, 8 abstentions. Western media have presented this language as “an unambiguous attempt to open the ITRs up to governance and content regulation.”

But was it? This is a more troublesome and complex issue than it might appear. In essence, countries such as Sudan have been complaining about the ability of the US govt to impose sanctions on them that include denial of Internet services. ITU Resolution 69, first passed in 2008, invoked again at the 2010 Plenipot, and dusted off for the WCIT negotiations, invoked “human rights” to argue for “non-discriminatory access to modern telecommunication/ information and communication technology facilities, services and applications.” The real target of these resolutions are sanctions imposed by the U.S. on nations that are deemed bad actors. These sanctions mean that people in those countries – not just the government, mind you, but everyone, innocent and guilty alike – are denied access to Internet services such as Google, Sourceforge, domain name registrars such as GoDaddy, software and services from Oracle, Windows Live Messenger, etc. See this attached document for a catalogue of Sudan’s complaints: Res69incidentsSudan.

I can understand why major Internet application, content and service providers would oppose a claim to a right to access Internet services. It would allow the ITRs to be used to compel them to serve particular organizations or territories when they might choose (privately) not to. However, most of the sanctions at issue are US government-imposed, not private decisions by service providers. Moreover, there is a legitimate case to be made that the importance of maintaining open lines of international communication and of keeping international institutions neutral outweighs any human rights gains that might be achieved through sanctions.

Don’t agree? Suppose that the US decided to deny domain name root zone resolution to Iran because of its bad human rights record. Suppose it ordered Verisign to remove .IR from the DNS root and make it nonfunctional. Make no mistake about it: the Iranian government is about as bad as it gets with respect to human rights. But would we want ICANN/the Internet governance regime to be used as a political/strategic tool to reform Iran? What happens to global interoperability when the core infrastructure gets used in that way?

Or suppose that ICANN decided to exclude Syria from the GAC. Certainly Syria is a criminal regime. But do we want ICANN to be a neutral meeting ground for all parties or not?

No simple answer; serious issues are at stake here. It is unfortunate that the entire ITR revision process seems to have foundered on this problem, and on the misrepresentation of this issue as an attempt to bring Internet content regulation into the ITRs.

Not that I think we really need new ITRs. The world can live without a revised treaty; it can rely on WTO or bilateral trade agreements and free trade principles to govern Internet and telecommunication interconnection. But this incident does show that one must always be skeptical of mainstream accounts of international negotiations, and be attuned to the weird, ironic and hypocritical nature of the process: it is the pro-Internet freedom nations that are insisting on using denial of access to internet services and infrastructure as a form of policy leverage, and the anti-human rights nations that are claiming a universal right of internet access.


32 comments

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  4. John Curran

    Milton –

    You might want to watch the video archive of the fourteenth plenary meeting (Thursday, 13 December 2012, at 19.30 hours GT), and in particular at the reservations expressed two hours in by the US, UK, Sweden, Canada, Denmark, South Africa, Netherlands, Costa Rica, Czech Republic, New Zealand, Poland, etc. which occurred immediately after the WCIT plenary moved from operating under a consensus basis to utilizing Member State voting to force outcomes.

    The WCIT conference, in the words of SecGen Toure, were to be discussions based on “consensus, in the true tradition of ITU.” The draft revised ITRs under consideration at the time still had significant aspects which dealt with the Internet, including an Internet Resolution, references to spam and security matters, all despite clear statements at the begin of the conference that the scope of the treaty would not include the Internet.

    It should not be surprising that many participants left the WCIT once the WCIT abandoned these principles. In the end, 50+ countries do not appear to be signing the revised ITRs, citing the conference as a departure from the multistakeholder Internet governance. To ascribe this to a common desire to prevent non-discriminatory telecommunications access does not reflect a solid understanding of the nature of the proceedings as they occurred.

    FYI,
    /John

    John Curran
    President and CEO
    ARIN

    • Milton Mueller

      John, just to be clear, I have said for some months that I don’t think we need the ITRs at all and thus do not particularly care whether they are signed or not. As an academic I am, however, continually amazed at the double standards and poor reasoning taken by both sides in this debate. So you say

      > The WCIT conference, in the words of SecGen Toure, were to be
      > discussions based on “consensus, in the true tradition of ITU.” The
      > draft revised ITRs under consideration at the time still had significant
      > aspects which dealt with the Internet, including an Internet Resolution,
      > references to spam and security matters, all despite clear statements > at the begin of the conference that the scope of the treaty would not
      > include the Internet.

      It remains a fact that nothing in the final ITRs mentions the Internet. The “spam and security” references in 5B and 5A, respectively, are as close as it comes and they cannot reasonably be classified as Internet governance. Here is 5A:

      “Member States shall individually and collectively endeavour to ensure the security and robustness of international telecommunication networks in order to achieve effective use thereof and avoidance of technical harm thereto, as well as the harmonious development of international telecommunication services offered to the public.”

      And here is 5B:

      “Member States should endeavour to take necessary measures to prevent the propagation of unsolicited bulk electronic communications and minimize its impact on international telecommunication services. Member States are encouraged to cooperate in that sense.”

      If it is your contention that these words constitute an aggressive attempt to take over the internet or to insert governments into the governance of the Internet in a new way I will laugh in your face.

      As for the Resolution, I understand the objections to it, but its (contested) passage via “room temperature assessment” did not by itself seem to trigger the abandonment of the process, though it may have contributed to it. And because it is NOT part of the ITRs and has no binding force on anything or anyone except the ITU SG, who is already actively and happily seeking a role for the ITU in Internet governance and has been doing so for the past 15 years, again I have trouble understanding it as a basis for refusal to sign the treaty.

      > It should not be surprising that many participants left the WCIT once
      > the WCIT abandoned these principles. In the end, 50+ countries dont
      > appear to be signing the revised ITRs, citing the conference as a
      > departure from the multistakeholder Internet governance. To ascribe
      > this to a common desire to prevent non-discriminatory
      > telecommunications access does not reflect a solid understanding
      > of the nature of the proceedings as they occurred.

      True, I was not there. But as my blog post makes clear, I was watching online and did not detect any disruption or abandonment of the process until AFTER the African amendment vote regarding nondiscriminatory access. Furthermore, there is nothing substantive in the ITRs that constitutes a significant deviation from “multistakeholder internet governance.” If you disagree please specify what it is (the Resolution does not count, remember, because it is not part of the ITRs), or alter your assertion.

      To conclude, this is an empirical issue and my interpretation remains open to any new facts. Unless you produce better evidence contesting or disproving my interpretation, I will stand by the story as it stands.

      • Bill Smith

        Milton,

        Perhaps you should review document 47E. The word “Internet” occurs 27 times in this self-described “compromise consensus document”. “Internet” also occurs 19 times in DECLARATIONS AND RESERVATIONS. The Final Acts contain “Internet” 9 times, admittedly in a Resolution.

        It is a fact that the provisions do not mention the term Internet. It is also a fact that the Acts and Declaration and Reservations mention the Internet numerous (28) times. In addition the record of the Conference will demonstrate that the Internet was a significant part of the conversation in Dubai. Taken together, it will be impossible from a legal standpoint to demonstrate that the WCIT was not about the Internet, regardless of what the ITU has maintained before or after the event. (While I am not a lawyer, my understanding from lawyers is that the record of the event is an important part of treaty law.)

        From my perspective, the record clearly shows that the WCIT was a referendum on the Internet and its Governance. Those not acceding endeavored to ensure that the Internet was not part of the Final Acts. The resulting text was a dramatic improvement but the individual compromises made, especially when coupled with 11th hour additions made it impossible for some to join the majority. And make no mistake, this was the will of the majority not of the Conference.

        I think that important because to join the majority meant agreeing not only with the Final Acts, but also the reasoning behind their initial proposals and whatever the record might show. Those proposals are clearly where this group would like to go and it was important that we remain principled and stand for a free and open Internet.

        You might not agree with this analysis but as someone on the ground in Dubai, I can state with authority that the US and other Member States did the right thing.

  5. Charles M.

    Milton,

    This whole debate reeks of the ‘pro life / pro choice’ poor choice of terms. The pro life crowd wants to purport the pro choice side as a bunch of murderers since, after all, they are not ‘pro life’. But this is just a semantics game, where one band distorts the meaning of words in its own advante.

    Here, the ‘pro freedom’ crowd actually wants rules that would in the long run allow them to actually crack down on said freedom. Rules that are supposed to be accepted as ‘good’ since they are, after all, legitimized in an international treaty.

    I don’t think you can just ignore the composition of both sides here. China, Russia, The *Arab Regimes* are the ones asking for a greater role for ITU. I find it hard to believe this to be just a coincidence and that while these countries crack down on their own citizens they want a higher good for the rest of the world.

    I do believe that ICANN has yet to cover a lot of ground in terms of internationalization and independence, but _right now_ it’s the best that we have.

    /Charles

  6. John Curran

    >[Milton L Mueller] True, I was not there. But as my blog post
    >makes clear, I was watching online and did not detect any
    >disruption or abandonment of the process until AFTER the
    >African amendment vote regarding nondiscriminatory access.

    That is to be expected, since it was the process issues that occurred with that vote which made it clear that WCIT had departed from its original mandate as described by ITU leadership at the start. Feel free to watch it again, and listen to the actual reasoning behind each countries reservations… there is about a dozen countries which all rise up and object to meeting at this point for similar reasons.

    >Furthermore, there is nothing substantive in the ITRs
    >that constitutes a significant deviation from “multistakeholder
    >internet governance.” Please specify what it is (the Resolution
    >does not count, remember, because it is not part of the ITRs),
    >or alter your assertion.

    The WCIT moved from seeking consensus among the participants to conducting a contentious vote (only open to Member States) to force an outcome. This was specifically after they indicated that the WCIT conference would operate by consensus as is their typical practice for contentious issues. Countries and sector members participated on that basis.

    FYI,
    /John

    John Curran
    President and CEO
    ARIN

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  8. Kyle Amon

    Dr. Mueller,

    Thank you for this rare and insightful elucidation regarding the “collapse” of the Dubai WCIT. I have already suffered a good number of vague, inaccurate and misleading accounts in the “official story” echo chamber of the blogosphere, including many boldly highlighting the downright duplicitous statements of U.S. Ambassador Terry Kramer. Mr. Curran and Co.’s posture is clearly informed by jingoistic vested interests rather than principals of intellectual integrity. I laugh in their faces with you. While not nearly as detailed as your treatment, here is an InfoWorld article that supports your accurate, yet minority position. I salute you for having the courage to maintain rigorous adherence to dispassionate reason in the face of orthodox pressure. Although I have been liberally posting your article to combat the onslaught of WCIT disinformation, the cacophony of speciousness and ignorance will no doubt ultimately relegate its truth to the memory hole, but such is the way of the world, it seems. Let it not be for lack of trying.

    http://bit.ly/12e0Udg

    Best Regards,
    Kyle Amon, Ph.D

  9. Peter H. Hellmonds

    Milton,

    you wrote:
    >[Milton L Mueller] True, I was not there. But as my blog post
    >makes clear, I was watching online and did not detect any
    >disruption or abandonment of the process until AFTER the
    >African amendment vote regarding nondiscriminatory access.

    Well, I have been working on many international conferences of this sorts, and my experience was that you cannot tell “what really happened” if you have not been present. Many of the really important discussions are not broadcast online, but take place elsewhere. To nkow “what really happened,” you would need to have had access to the US delegation in private chats to really understand their motives.

    So, since you were not present on the ground, where do you get your information from about US motives? Are your informations based on facts or are they speculations as in “[s]uppose that the US decided to deny domain name root zone […]” or as in “[…] suppose that ICANN decided to exclude […].”

    In my reading, both the US and the European countries were united in stemming the enlargement of the ITRs to encompass the Internet, period. Why in the world should a single sentence of a non-binding resolution be the tipping point?

    • Milton Mueller

      Peter: you seem to have misunderstood my thought experience regarding possible sanctions on Iran that might make use of the DNS root and US control of IANA. These are not assertions about what US motives are nor are they predictions of what the US will do. They are statements of fact about what the US COULD do if it wanted to use Internet infrastructure as a tool of foreign policy sanctions.
      I am in direct communication with many people in the US delegation, by the way. I have yet to get a good explanation for the US end game, though I am beginning to get a broader picture which will be reflected in a new blog post in a day or two.
      In that respect, your statement that “both the US and the European countries were united in stemming the enlargement of the ITRs to encompass the Internet” like so many statements emanating from Dubai, fails to explain how a new set of ITRs that DOES NOT MENTION THE INTERNET has been enlarged to encompass the internet.

      • Peter H. Hellmonds

        Milton, referring to your question
        > In that respect, your statement that “both the US and the
        > European countries were united in stemming the enlargement of
        > the ITRs to encompass the Internet” like so many statements
        > emanating from Dubai, fails to explain how a new set of ITRs that
        > DOES NOT MENTION THE INTERNET has been enlarged to
        > encompass the internet.

        Well, Europe was concerned, inter alia, about including content, including spam, and topics touching upon security in the new treaty. Both issues were included in a way that these issues can readily be interpreted to apply to the Internet. And considering the comments of Russia it is clear how they intend to interpret the language.

        Sometimes one can make statements about something not naming the thing directly. And the diplomats working the ITU for decades know exactly how to build one upon the other.

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  11. Olivier Crepin-Leblond

    Dear Milton,
    many of us on the ground were really sorry not to see you in the room in Dubai. Perhaps then would you have actually understood the situation and tension that was present in the room.
    Without wanting to go into details, several parts of the ITRs were deeply flawed.
    5A needs to be read along with ITU Standard Y.2770 which makes it mandatory to implement deep packet inspection (and not even a mild case of DPI) to all “next generation networks” which could be easily interpreted as the IPv6 network. As a standard it is far from mandatory. But 5A and 5B bring this much closer to make it mandatory – and you’ll notice that the language in Y.2770 is very close to the language of 5A and 5B.
    5B is an absolute NO-NO when the beginning of the document says that the ITRs are not about content. In fact, in it is unclear whether later recommendations take precedence over earlier recommendations in a document as is the case in some legislatures. Indeed, you should have seen the opposition from some countries to having the “no content” clause included – which completely killed any remains of trust between the two “sides”.
    The you have the Resolution at the end which is a real provocation for some and not enough for others who would have wanted the Internet to be included in the ITRs, including taking over numbering and addressing by States.
    The EU came very close to signing although many countries had serious reservations about ITRs which simply did NOT make any sense. How can Spam not be content? The Spam debate was fuelled by claims that it flooded some country networks yetemail traffic is less that 5% of Internet traffic, less that 3% of all telecom traffic (estimated) and therefore with Spam being at, say 50% of email traffic, countries were arguing for a Regulation to filter traffic and perform DPI on maximum 2% traffic gain? It simply did not make sense.
    So the strategy of the EU countries, after having made a lot of concessions, was to wait and see the final proposal from the Chair, which although it had all of these inadequate articles, was a real improvement.
    But for some governments this was not enough! They insisted on the right of States to telecommunication services and put it on a par basis with Human Rights. They argued the Rights of States was the same as the Rights of individuals. One of the most balanced Countries, Switzerland, expressed its outrage. Tension was rising fast. We got lectured by some countries that oppress their people about Human Rights. And then Iran called for an abrupt end to the discussion, after having intervened more than any country in the past 2 weeks, and called for a vote — when I remind you that on many many occasions Dr. Touré and the Chair has assured us there would be no vote.
    This derailment was self-inflicted and this was the drop that got the vase to overflow. Where the heck was the consensus? What kind of shotgun tactics are those? It was obvious by the numbers that the countries opposing the aggressive manner in which this was conducted, would lose a vote.
    For me, sitting in this room, this was Game, Set and Match. My country, the UK, did not sign and I am ever so glad they did not. Yes, I had a say in the matter since I was a full UK delegate, one of the many countries which brought multiple stakeholders at the table and guess what, most of these countries have not signed. Does this not tell you something?

    So that is my personal assessment of what happened and I was at the heart of it. I saw some very ugly stuff going on there, stuff which I would really like the Internet to be preserved from.
    But I am sad too. I am sad because I also heard some very valid concerns from developing countries that they were not able to participate in the multi-stakeholder model because of lack of funding, lack of understanding and a lack of proactive work from our “own” side.
    I am planning to report fully to ICANN on the matter – we should do more to bridge the gap. At the moment, these countries only have two fora in which they can participate and that’s the IGF where nobody listens to them and the ITU where they have a voice. During the hour that followed the dramatic vote, I went to see my “opponents”. Many of us did – and whilst not apologizing for not signing, we exchanged business cards and I intend on following up. In fact, many European countries are intent on following up with countries that do not appear to have hidden intentions are are genuine about the level of despair they displayed at this conference. Because sadly, there was despair too. This is the start of a better dialogue, one which we must make efforts in promoting, reaching out, building capacity.

    In closing, I’d say that this was not only a failure of the ITRs and the ITU, it was a failure of Internet Governance too. Civil Society has the ability to bridge the gap – and I know of several governments that have understood this. Let’s work together to ensure we will never live again a similar WCIT full of mistrust and despair.

    Olivier
    (speaking entirely on my own behalf)

    • Milton Mueller

      Olivier,
      Thanks for these comments. I think they explain better than most the attitudes and feelings that underlay the refusal of many western countries to sign the new ITRs. I hear you and I share your disgust with states that deny human rights to the people in their jurisdiction while asserting a “states’ right” to Internet access.
      The more I hear, the greater the importance of using votes rather than consensus looms in leading to the impasse, but I still don’t see any major provision of the ITRs themselves that leads to, or opens the door to, control or regulation of the internet. As noted earlier, I will write an updated post taking account of the additional information slowly emanating shortly. I also want to warn you that I find your comments about DPI, the NGN standards and the ITRs to be completely wacky. The idea that 5A can be construed to require – REQUIRE, mind you – the use of DPI is so beyond the pale that it discredits the case you are trying to make.

      • Graham Smith

        Never underestimate the power of general language. OFTEL, the UK telecoms regulator in the 1980s, was thought not to have any content regulation powers. It then stepped in to regulate the content of premium rate telephone services on the basis of a duty to promote the interests of consumers in respect of the ‘quality’ of telecommunications services. Wacky or what?

        • Milton Mueller

          Your example reinforces what I have been saying all along: if you want to worry about government takeovers of the Internet, look no farther than the nearest nation-state, not to the ITU. The idea that China or Russia could stretch 5B to regulate Britain’s traffic is obviously false. The idea that the UK needs 5B to regulate its domestic Internet traffic is also obviously false. The idea that China and Russia need 5B to spy on their own Internet users is ….obviously false. So what exactly is the point you are making about the alleged dangers of this 5B provision?
          My refutation does not even need to point out how completely bonkers your interpretation of 5B is. It has nothing to do with content but targets “unsolicited bulk electronic communications.” Most governments, including the UK and US, already regulate unsolicited bulk email and telemarketing. Does this mean that the first amendment is dead in the US and that there is no freedom of expression in the UK?

          • Olivier Crepin-Leblond

            Dear Milton,

            I’m afraid you’re missing the point. The fact that governments do whatever they want to do at home is obvious. What’s not normal is to make it “the norm”.

          • Shahram Soboutipour

            Dear Milton,
            Thanks for bringing our issue up, since it is really an issue while nobody in western countries does not even understand what we are shouting for in recent years.
            You can never understand what we feel when trying to open a simple Google service like Analytics, facing this message:
            " We're unable to grant you access to Google Analytics at this time.
            A connection has been established between your current IP address and a country sanctioned by the U.S. government. For more information, see http://www.ustreas.gov/offices/enforcement/ofac/. "

            There are lots of samples of this page. I don't have access to Android Market or AppStore, I can't register domains with GoDaddy, I can't purchase SSL for my .IR website, I even can't see my country's name in the list of "Country of
            birth" on some of the famous website's Sign Up pages!
            Who can call it  a "FREE INTERNET"?!
            Doesn't it mean that internet is free for just those who US likes?
            Like many others, I do not want the governments to have complete control on internet, I want the multi stakeholder internet, but what we see today, is an internet under "exclusive control" of a few governments. So if  as you said "it is the pro-Internet freedom nations that are insisting on using denial of access to internet services and infrastructure as a form of policy leverage" (a(and even worse, because these leverages are not punishing the right persons), then I prefer it to be under control of all governments. At least in this situation my internet works completely, like my cell phone.

  12. Lee McKnight

    Milton,

    As you know any treaty negotiation involving 100+ countries is a multi-player, and multi-layer, poker game. From which dy definition everyone emerges a winner, or a loser.

    The simplest explanation, which is usually on target, for a failure to reach full consensus is in such a process is – either a) some hands were mis-played or b) failure was preferred to winning, by a sufficient number of players to crash the game.

    I subscribe to the view that Toure, and the UAE chair, badly mis-played several hands beginning last Wednesday evening. What could have been a ‘win’ more or less for all parties ended up – not that.

    That does not mean it might not also be true that some players wished to bring the whole game down, over some of the elements to which others generally agreed. As you suggest.

    Finally, because the ITRs are to be included in a treaty, then the meaning of every single word in every single sentence, and its interpretation (framed by the language of a ‘non-binding’ resolution which nonetheless can shape future interpretations just as Courts may occasionally turn to review of Congressional debates to try to understand the meaning of some legislative language) matters in a way in which all of the commitments in the ‘WSIS Declaration of Principles’ – do not. Which is just a declaration, even if it is one many of generally like. States like it too, since they get a lot of credit for making very soft commitments. The ITRs on the other hand, are an entirely different matter. So the long game continues for several more rounds.

    So it ain;t over til it’s over, and until the 2014 Plenipot concludes, this round is not over, so we may agree to disagree – on what happened in Dubai. Or – not ; ).

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  14. Jillian C. York

    “However, most of the sanctions at issue are US government-imposed, not private decisions by service providers.”

    True, but service providers are notoriously overreaching in their application of these sanctions – For example, companies are prevented from conducting transactions with Iranian banks; Google interprets this by blocking Google Ads in the Persian language, presumably because the assumed target is people in Iran (nevermind the fact that there are thousands of Persian speakers outside of the country). Google also prevents people in sanctioned countries from participating in their Summer of Code and Policy Fellowships: not because such “transactions” are sanctioned, but because those programs come with swag perks like t-shirts and bags, which are prohibited as deemed exports.

    In any case, glad to see that issue being taken on – I’ve been working on it for a few years now and find that (to reverse your wording), the potential human rights gains pushed by sanctions have been far outweighed by the damage done to activists groups and ordinary citizens.

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