Chapter 4 - Provisions authorising seizure
The nature of powers of seizure
4.1
In principle, seizure powers cannot be separated from the entry
and search powers with which they are generally exercised. The inclusion in the
terms of reference for this inquiry of a paragraph related to seizure
provisions enables the Committee to emphasise that the principles it set out in
the original report should be considered to apply, as relevant, to provisions
authorising the exercise of powers of seizure.
4.2
In particular, where the seizure of documents or other material
represents a significant intrusion upon personal rights, the same
considerations should be taken into account as apply in granting or exercising
intrusive entry and search powers.
4.3
In this respect, the Committee will continue to test new seizure
provisions in legislation against the principles set out in its original
report. In keeping with the Committee's comments in Chapters 2 and 3 of this
report in relation to the Guide to Framing Commonwealth Offences, Civil Penalties
and Enforcement Powers (the Guide), the Committee would expect that the
explanatory memorandum to any such bill would set out any points of departure
from the criminal law policy set out in the Guide.
4.4
This Chapter begins with some commentary on seizure provisions as
they apply generally across Commonwealth legislation. The Committee then
considers situations in which provisions enable seizure on a basis which is
removed from the usual context of entry and search provisions, including the
special considerations which apply to the seizure of material in respect of
which parliamentary privilege might be claimed, seizure of material that is not
relevant to an investigation and technological developments affecting entry,
search and seizure of material.
4.5
The Committee also considers the merits of developing protocols
to govern the seizure of material.
Seizure provisions in Commonwealth legislation
4.6
The Committee has not undertaken a systematic survey of seizure
provisions in Commonwealth legislation, noting that such a survey would largely
replicate a similar exercise undertaken in respect of search and entry
provisions in its original inquiry. The Committee considers that, while such a
survey may be warranted, it would only make sense to undertake it with a defined
purpose of review in mind. In this respect, the Committee notes the lack of
support from the Government for a general review of existing search and entry
provisions.
4.7
The Committee notes the discussion of seizure provisions as set
out in the Guide at Part 9.6:
Principle: Seizure should only be allowed under a warrant, even
if entry and search without warrant are permitted. Where entry is allowed
without warrant, the legislation may provide that items may be secured, pending
a warrant application.
Discussion: Seizure is a significant coercive power and the
Commonwealth has consistently taken the approach that it should require
authorisation under warrant.
4.8
The Committee also notes a relevant comment in the Government
response in relation to record-keeping and reporting practices, namely that
'seizure of items is only permitted under a warrant, which in itself links into
recording procedures that apply to the execution of warrants'.[1]
4.9
The Committee received a number of submissions from agencies setting
out the particular seizure powers they administer. Common elements include
notification of rights, itemisation of things seized, issuing a receipt for
things seized, and return of documents and other materials seized (with some
exceptions, such as perishable goods, live animals, narcotic goods and
dangerous goods).
4.10
In general, these provisions accord with the Committee's
principles governing the provision of information to occupiers[2]
although the Committee notes that the practice in relation to video or tape recording
the execution of search warrants, and providing copies or transcripts, is
inconsistent.
4.11
The Committee did not generally note any concerns with the
exercise of ordinary powers of seizure pursuant to warrant, except in the case
of seizure of material not relevant to an investigation. This includes the
seizure of 'electronic' documents and equipment such as under the Cybercrime
Act 2001. The Cybercrime provisions are considered below, together with a
number of similar legislative developments associated with new technology.
Seizure and parliamentary privilege
4.12
In its original report the Committee recorded the protections
afforded against the seizure of documents that are subject to legal
professional privilege. The Committee did not give consideration at that time
to the seizure of documents subject to parliamentary privilege.
4.13
The Senate Committee of Privileges has defined the privileges of
Parliament as 'immunities from the operation of certain laws conferred in order
to ensure that the duties of members as representatives of their constituents
may be carried out without fear of intimidation or punishment, and without
improper impediment.'[3]
4.14
The relationship between parliamentary privilege and the seizure
of documents under warrant has been the subject of much consideration in recent
years. The Clerk of the Senate has drawn the Committee's attention to
developments in law and practice arising largely from two cases involving the
execution of offence-related search warrants by the AFP in senator's offices. As
the Clerk points out:
Parliamentarians have no general immunity against the entry of
their premises or the inspection or seizure of their documents under a search
warrant or pursuant to a statutory authority ... The law of parliamentary
privilege ... makes the seizure of some categories of documents, associated with
proceedings in Parliament, ... unlawful.[4]
4.15
The practice which has arisen in the Senate from the two cases
referred to above is that any claim of immunity from seizure due to
parliamentary privilege is determined by the Senate. The Clerk states:
In both cases, documents claimed by the senators to be immune
from seizure were sealed and the claim of immunity was determined by the Senate
through the medium of an independent arbitrator. In both cases documents were
withheld from the police and returned to the senators as having been unlawfully
seized under the search warrants. In one case some documents were identified as
immune from seizure by virtue of parliamentary privilege, and in the other case
all of the documents were held to be not authorised to be seized under the
warrant.[5]
4.16
That practice is now supported by a memorandum of understanding
between the Presiding Officers and the AFP, tabled in the Senate on 9 March 2005.[6]
The development and status of the law and practices involved is discussed in
greater detail in the 75th, 105th, 114th and
125th reports of the Senate Committee of Privileges.
4.17
The Clerk notes that the immunity from seizure of documents under
parliamentary privilege also applies in relation to statutory search and entry:
... a statutory provision which, for example, authorises the
inspection and seizure of 'any documents' relating to a particular matter does
not authorise the inspection or seizure of documents which are immune from inspection
and seizure by virtue of parliamentary privilege. The statutory provision has
to be read as subject to parliamentary privilege unless the statute by its
terms alters the law of parliamentary privilege.[7]
4.18
The Clerk proposes that Commonwealth agencies with entry, search
and seizure powers be advised:
... that there are categories of documents which are immune from
examination and seizure because of parliamentary privilege and that, in
exercising such powers, they should not gain access to those kinds of documents.
They could also be advised that, should a question of parliamentary privilege
arise in relation to documents, they should take steps to have the question
determined, along the lines of the procedures adopted by the Australian Federal
Police[8].
4.19
The Committee supports this proposal, and sees the matter as one
for the President and the Senate Committee of Privileges to progress.
4.20
The Clerk notes that, in its 114th report the
Privileges Committee
... pointed out that potential problems with parliamentary
privilege and warranted searches are much more likely to arise because of the
current practice of police, when executing a search warrant, of sweeping up
every piece of information in an office and taking it away to ascertain whether
it is relevant to the investigation (this may be called the 'vacuum cleaner
approach to searches).[9]
4.21
The Committee also notes the observation of the Senate Committee
of Privileges that this problem is compounded by the electronic storage of
documents. This matter is discussed further in the context of a number of other
legislative developments associated with new technology[10].
Seizure of material that is not relevant to an investigation
4.22
Generally speaking, in exercising powers of seizure under warrant,
an officer cannot go beyond what is properly authorised in the warrant. The
courts may also add a measure of fairness in these circumstances by exercising
their discretion to exclude evidence which has been improperly seized.
4.23
In Chapter 4 of the original report the Committee noted the
guidelines laid down by Fox J in Tillet's case 'which emphasise the
strict statutory compliance usually insisted on by the courts' among them:
- as a corollary of the power of seizure, a particular offence must
be specified, both in the information and in the warrant – this is so even
where the statute simply uses the words 'any offence' ; and
- the warrant must not authorise the seizure of things in general,
or things which are related to offences in general, but should only authorise
the seizure of things by reference to the specified offence.[11]
4.24
Subsequent paragraphs set out the manner in which the court
applies these principles. The Government response, at page four, states that
'[t]he current line of judicial authority is that courts will not automatically
strike down a search warrant that is wider than it should have been' but will
exercise a judicial discretion in this regard. The Committee agrees that this
approach is sound.[12]
4.25
However, the Committee notes that there are circumstances in
which material which is not relevant to an investigation might be seized,
specifically:
- seizure of material relevant to another matter; and
- the incidental seizure of material.
4.26
The Committee was concerned to understand what protections or
safeguards might exist in relation to the handling of such material.
Seizure of material relevant to
another matter
4.27
The Committee notes that under a number of pieces of legislation,
officers are authorised to seize material relevant to an offence other than
that specified in the warrant. For example, section 98(4) of the Customs Act
1901 makes provision for a warrant to authorise the seizure of things that
the executing officer reasonably believes to be evidential material in relation
to an offence to which the warrant relates or to another offence.
4.28
In its submission to the inquiry, the ACS noted that the
examination of data on a hard drive may lead to the discovery of documents
relevant to another Customs offence, which would be investigated and prosecuted
by the ACS, or a non-Customs offence, in which case the data would be passed to
the relevant agency for investigation and prosecution.[13]
4.29
Similarly, DIMIA gave evidence that the Migration Act provides
DIMIA officers, having entered premises or boarded vessels under a warrant, to
seize documents not related to the warrant but which the officer reasonably
believes to be evidence of an offence under the Migration Act. At the hearing,
Mr McMahon stated that :
Essentially, if we saw something that led us to believe that a
document relating to travel was fraudulent, we do have powers under 189 in
respect of that. If we went in there and, even if it were not related to the
warrant, we saw a person about whom we formed the view at that time that they
were an illegal, it would not be the warrant that was providing the power; it
would be the act itself.[14]
4.30
Mr Walker went on to clarify that the evidence that could be
seized needed to be specifically related to immigration matters:
The power of seizure that goes with the warrant is very much
conditioned on the basis of 'may seize any such document'. Reading on in the Act,
it is about entering, with the warrant, the premises where you have reasonable
cause to believe that you will find:
'(d) any passport or document of identity of, or any ticket for
the conveyance from a place within Australia to a place outside Australia of,
an unlawful non-citizen, a removee or a deportee, within the meaning of the
Act; and to seize any such document, book, paper, passport, document of
identity or ticket, as the case may be, and to impound and detain it for such
time as the officer thinks necessary ...'[15]
4.31
The Committee is concerned that it may not always be clear under
what authority material has been seized, particularly if that material relates
to a matter other than that listed in the warrant. For the benefit of
authorised officers and the occupier of the premises, it is important that the
proper authority is established at the time of seizure.
Recommendation 10
4.32
The Committee recommends that consideration be given to expanding
the Guide to set out the principles governing the seizure of material relevant
to a different offence, particularly an offence under a different statute, to
ensure that proper authority is provided and that proper provision is made for
the subsequent investigation and prosecution of offences.
Incidental seizure of material and
the impact of technological developments on the law of entry, search and
seizure
4.33
The Committee notes that, as well as opening up a range of new
opportunities for criminals, technological developments offer new opportunities
in the area of entry, search and seizure and as a result pose significant
challenges for the protection of rights. In particular, the Committee notes
that successive legislative amendments in response to technological
developments in relation to the interception of telecommunications have widened
the range of uses and disclosures of a range of personal communications and
significantly extended the scope for the seizure of information incidental to
the primary purpose of investigations.
4.34
Careful development of legislative and administrative responses
can also be at odds with the sheer speed of technological change. Despite this,
in the Parliamentary Joint Committee on the National Crime Authority Report The
Law Enforcement Implications of New Technology, tabled in August 2001, noted
that there is a need to weigh the demands of law enforcement agencies to
capitalise on technological developments in their investigations against human
rights and privacy considerations. That Committee also noted the desirability
of including public discussion as part of that process. [16]
4.35
The report also noted the need for significant developments in
the criminal law to keep pace with emerging technologies. It recorded the
passage of the Telecommunications (Interception) Legislation Amendment Act
2000, which provided for 'named person warrants', enabling authorised
agencies to monitor all telecommunications services used by the named person.[17]
The previous regime had required the nomination of a particular service (for
instance, a particular landline). The National Crime Authority (NCA) made
several recommendations about the extension of the telecommunications interception
regime and recommended that 'the Government ensure that the integrity of the Telecommunications
Interception Act is not undermined by emerging technology (para 1.79)'. The Parliamentary
Joint Committee also made recommendations calling for 'an appropriate level of
regulation of Internet Service Providers (ISP) to ensure their cooperation with
law enforcement (para 1.73)' and the introduction of 'comprehensive national
electronic surveillance legislation, with particular emphasis on the inclusion
of appropriate privacy provisions (para 1.116)'.[18]
4.36
Subsequent legislation has taken the law relating to entry,
search and seizure into novel territory. The Cybercrime Act 2001 introduced
amendments to the Crimes Act which significantly increased the
opportunity for the seizure of material unrelated to an investigation. As a
result police executing a warrant under the Act are able to search for data in
different physical locations, that is not confined to the search premises and
may copy all material on a computer if it is suspected that the computer
contains evidential material. Previously police could only copy evidential
material.
4.37
The Act also enables a law enforcement officer to obtain an
assistance order from a magistrate. An assistance order requires a person with
knowledge of a computer, where it is reasonably expected that there is evidential
material, to provide information or assistance to police so that they can
access or copy data on that computer. It is an offence not to co-operate with
an assistance order.
4.38
Simon Bronitt and Miriam Gani have noted that:
Compared with ordinary search warrants, these powers are
significantly wider in several respects. Ordinary search warrants of private
premises do not allow the seizure of material unrelated to the investigation –
for reasons of convenience and practicality, warrants targeting data allow the
police to copy and analyse large quantities of data without any further
obligation placed on the law enforcement officers to mitigate the negative
impact on privacy interests of suspects or innocent third parties. While
privacy is not absolute, under international human rights law it is
well-established that intrusion into the lives and affairs of citizens for the
purpose of crime detection must be necessary, reasonable and proportionate.
This power may not meet these standards.[19]
4.39
The authors also draw attention to the assistance orders
provision and state that it does not address the potential for
self-incrimination or the question of whether a court would find that there is
an implied defence of 'lawful excuse' if a person refuses to assist on the grounds
that it might incriminate them.
4.40
Similarly, the Telecommunications (Interception) Amendment
(Stored Communications) Act 2004 and the Surveillance Devices Act 2004
also have the potential to invade privacy to an unusual extent. Firstly,
because they each authorise covert actions (in some circumstances) and
secondly, in the case of the Stored Communications Act, because the person
whose consent is required prior to entry is remote from the person whose rights
are affected. The Telecommunications (Interception) Amendment Act 2006,
which implements many of the recommendations of the Report of the Review of
the Regulation of Access to Communications (the Blunn Report) widens the
range of agencies and purposes for which covert access to stored communications
may be authorised.
4.41
Each of these bills was examined closely by the Senate Legal and
Constitutional Legislation Committee and the Committee does not intend to
duplicate that consideration in this report. However, the Committee notes that
this trend raises a number of significant issues, particularly the extent to
which material unrelated to the investigation and material in relation to
innocent third parties can be seized and the safeguards applied to the handling
of such material.
Surveillance Devices Act 2004
4.42
The Surveillance Devices Act 2004 established an interim regulatory
regime governing the use of surveillance devices pending the outcome of the
Blunn Report. The Act included procedures for federal, state and territory law
enforcement agencies to obtain warrants and emergency authorisations for the
entry on to premises (using force if necessary) or specified adjoining premises
in order to install or remove a surveillance device. The warrant could also
authorise action reasonably necessary to conceal the installation of the
warrant and interference with the property of a person who is not the subject
of the warrant in some circumstances.
Telecommunications (Interception)
Amendment (Stored Communications) Act 2004
4.43
The Telecommunications (Interception) Amendment (Stored
Communications) Act 2004 (the Stored Communications Act) amended the Telecommunications
(Interception) Act 1979 to introduce the concept of a stored communication
and exclude such communications from the existing prohibition against interception.
A 'stored communication' is an electronic message located on a computer,
internet server or other equipment, whether read or unread, such as text
messages, voice mail and e-mails stored on the servers of an ISP. In effect,
the prohibition against interception under this Act is limited to 'live' or
'real time' interception of communications transiting a telecommunications
system.
4.44
As a result, the provisions of the Stored Communications Act
operate as an exception to the usual telecommunications interception regime so
that it is not necessary to obtain a telecommunications interception warrant to
access stored communications. However, the legislation still requires lawful
access to the communication or the equipment on which it is stored, for
instance by execution of a search warrant on the premises of the ISP or by
seeking the consent of the ISP to enter its property and access its equipment.
4.45
The Committee notes that measures which are designed to protect
individuals and the security of their property, such as seeking the consent of
or providing notice to the occupier, are not well-adapted to these
circumstances. As Bronitt and Stellios observe, this raises the question of
whether such new forms of covert search warrant justify the development of a
different regulatory approach.[20]
The incidental access to stored communications and material related to other
parties not subject to an investigation is also a matter of concern.
4.46
The Committee notes the submission by Electronic Frontiers
Australia that:
covert, remote access to and seizure of the content of
communications stored on service providers’ equipment should not be permitted
under general search warrants because the information obtained invades the
privacy of law-abiding third parties who are not suspects, that is any person
who has been in contact with a suspect. Remote search and seizure is especially
inappropriate because it constitutes secret surveillance that is vastly more
open to misuse of search powers that are search warrants executed on a suspect’s
premises or on a telecommunications service provider’s premises.[21]
4.47
Arguably there is little difference between the powers exercised
under the stored communications legislation and a telecommunications
interception warrant. Both are executed covertly and officers intercepting the
communications are expected, in practice, to filter out irrelevant material and
retain only material which is relevant to their investigations. One major
difference, of course, is the more strenuous level of judicial supervision
surrounding the issuing and execution of a telecommunications interception
warrant, as opposed to an ordinary search warrant, and, as noted above, even a
search warrant may not be necessary where access to property can be obtained by
consent.
Telecommunications (Interception)
Amendment Act 2006
4.48
The Telecommunications (Interception) Amendment Act 2006
introduced a warrant regime for enforcement agencies to retrieve stored
communications held by a carrier. The amendments regulate the use,
communications and recording of information obtained by access to stored
communications. Under the amendments, enforcement agencies are required to
report to the Minister regarding the use of the stored communications powers.
4.49
The Act also provides for interception warrants for
communications of an associate of a person of interest, referred to as 'B
Party' interception warrants, and provides for the interception of
telecommunications services on the basis of a telecommunications device, rather
than attaching to the person who is the owner of the service. This permits
access to mobile phone text messages, as well as voice messages.
4.50
The Committee notes that the Act does include some safeguards.
Privacy considerations apply to all interception warrants and the use of
interception powers by security and law enforcement agencies continues to be
subject to reporting, disclosure and destruction provisions within the Telecommunications
(Interception) Act 1979.
4.51
However, the enactment of these pieces of legislation has made it
easier for a wider range of enforcement agencies to seek approval from a wider
range of issuing authorities to gain covert access to stored communication for
investigation of a wider range of offences. The Committee notes concerns that
this apparent easier access appears to be based on a presumption that a stored
communication is in some way more considered and therefore able to be subject
to a lesser degree of privacy protection than a phone call.
4.52
Developments in telecommunications have moved considerations
regarding the impact of entry search and seizure powers further into the realm
of privacy than of strictly protection of property. The Committee notes that
the Attorney-General referred a review of the Privacy Act 1988 to the ALRC
on 31 January 2006 and that the ALRC is to have regard to:
- the rapid advance in information, communication, storage,
surveillance and other relevant technologies;
- possible changing community perceptions of privacy and the extent
to which it should be protected by legislation;
- the expansion of state and territory legislative activity in
relevant areas; and
- emerging areas that may require privacy protection.
4.53
The Committee looks forward to the report of that inquiry. In the
meantime, the Committee endorses the views of the Senate Legal and
Constitutional Committee that stored communications should not be afforded any
less privacy than is afforded to real time communications. In commenting on the
provisions of the Telecommunications (Interception) Bill, that Committee stated
that the primary test should be whether the seriousness of the offence warrants
the invasion of privacy, particularly in the case of covert interception. [22]
4.54
Given the covert nature of such investigations, stored
communications warrants cannot be considered the equivalent of search warrants.
The Committee agrees that covert access to communications should be subject to
much tighter controls than overt access because covert access denies
individuals the opportunity to protect privileged information or to challenge
the grounds on which access has been granted. The Committee also agrees that
there should be legislative provision for reporting of use and effectiveness of
such warrants equivalent to obligations for telecommunications interception
warrants.
Recommendation 11
4.55 Covert access to stored communication should only be
permitted with a warrant and should only be accessible to core law enforcement
agencies. The subject of the warrant and the telecommunications services for
which access is being sought should be clearly identified in the application
for the warrant and on the warrant itself.
Protection and disposal of material
4.56
As noted above, access to stored communication results in an
increased likelihood of the collection of large amounts of information that may
not be relevant to the investigation for which the warrant was issued.
4.57
The Committee has noted the practices of a number of agencies in
relation to the seizure of material. This includes secure storage, limitations
on who can access such material in the course of an investigation and
maintenance of registers to track access to the material. For example, ASIC
advised the Committee that while it endeavours to avoid the seizure of
irrelevant material, for both privacy and storage reasons, it is sometimes
unavoidable. ASIC explained that it can be difficult to determine the relevance
of some material at an early stage in the inquiry and may not be practical to
view computer records on the premises. ASIC's policy is to provide the occupier
of premises an opportunity to review material prior to its removal, and issue a
receipt. Seized material is stored in a secure area and access is controlled.[23]
4.58
The Committee also notes the submission by the Office of the
Federal Privacy Commissioner (OFPC) that the Information Privacy Principles
(IPPs) in section 14 of the Privacy Act, which apply to information about
individuals handled by most Commonwealth agencies, do not include a requirement
to destroy data that is not relevant to an agency’s functions or activities.
The OFPC goes on to state that this is in contrast to the National Privacy
Principles, which apply to the private sector, which require that an
organisation must take reasonable steps to destroy or permanently de-identify
personal information that is no longer needed. The OFPC submitted that
legislation granting agencies the power to seize materials should contain a
requirement that incidentally collected third party information should be
destroyed by the agency as soon as practicable or when operational necessities permit.[24]
4.59
The Committee notes that most agencies do tend to periodically review
their holdings of seized material in terms of its relevance to a particular
investigation, for storage reasons if for nothing else. The Committee also
notes that the Guide suggests that generally an upper limit of 60 days should
attach to the retention of seized items, with the possibility of an extension
of that period in particular circumstances where this is clearly justified.
4.60
The Committee would like to see the Guide revised to include
specific reference to the incidental seizure of material unrelated to a
particular investigation. In this regard, the Committee considers that it is particularly
important that adequate legislative provision is made to require agencies to
regularly review their holdings of seized material in light of its relevance to
the particular inquiry, particularly information accessed via stored
communications warrants, and return or destroy information no longer required. The
Committee also considers it desirable that limitations are placed on the use
and derivative use that can be made of certain material obtained in this
manner.
Recommendation 12
4.61
The Committee recommends that the Guide be amended to require
that legislative provision be made for the regular review of seized material
and for the timely return or destruction of material not relevant to a
particular investigation.
Recommendation 13
4.62
The Committee recommends that the Guide be amended to encourage
the inclusion of limitations on the use and derivative use of seized material
which is not relevant to a particular investigation.
The merits of developing protocols
4.63
The Inquiry's third term of reference required it to consider whether
the rights and liberties of individuals would be better protected by the
development of protocols governing the seizure of material. The Committee
received little substantive evidence on this point, though a small number of
submitters were generally supportive of the concept. Both the Law Council[25]
and Electronic Frontiers Australia[26]
submitted that the rights and liberties of individuals would be better
protected by the development of protocols governing the seizure of material. ASIC
was not opposed in principle, and the ACS stated that protocols 'would serve an
important educative function and may result in an improvement in the
development of policy, legislative proposals and administrative decision making
of government agencies.'[27]
4.64
The main arguments raised against the development of protocols
were the inadvertent limitation of rights and liberties, administrative
concerns and the need for agencies to respond flexibly. The ACS expressed
concern that the definition of individual rights and liberties within a
protocol might serve to limit those rights and both the ACS and ASIC expressed
concern at the administrative burden that might be associated with the
implementation and review of such protocols.[28]
DIMIA advised the Committee that it has its own protocols and guidelines
governing the seizure of material, which 'have been designed with the
flexibility to cater for the unique demands of enforcing the Migration Act.' [29]
4.65
The Committee notes that this last point raises one of the difficulties
in assessing the need for a protocol to cover the seizure of material. As noted
in Chapter 3, the manner in which search and entry warrants are executed
under relevant legislative provisions is often determined by guidelines which
are not necessarily publicly available. As a result, unless such guidelines are
tabled in Parliament, they are not generally available for parliamentary
scrutiny.
4.66
The Committee considers that, rather than seek to establish a
separate Protocol, there is merit in expanding the Guide to include a set of
core principles which could provide a framework for agencies to use to develop
their own operational guidelines.
Recommendation 14
4.67
The Committee recommends that the Attorney-General give
consideration to the formulation of core principles governing the seizure of
material.
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