Regulation of Interception of Communications & Provision of Communication-Related Information Amd Bill: briefing

NCOP Security and Justice

17 October 2007
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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS STANDING COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS STANDING COMMITTEE
17 October 2007
REGULATION OF INTERCEPTION OF COMMUNICATIONS & PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL: DEPARTMENT OF JUSTICE BRIEFING

Chairperson:
Kgoshi L Mokoena (ANC, Limpopo)

Relevant Documents
Regulation of Interception of Communication and Provision of  Communication related Information Amendment Bill [B9B-2006]

Audio recording of meeting

SUMMARY
The Department of Justice had previously briefed the Committee on the provisions of the Regulation of Interception of Communications and Provision of Communication Related Information Amendment Bill (the Bill). The Bill largely sought to amend Sections 40 and 62(6) of the principal Act, which focused on the obligations of service providers to keep information on their clients, which could be used in the fight against crime. The Committee was addressed by representatives from Vodacom, MTN and Cell C, who indicated that although they supported the aims of the Bill, there were three main problems. Firstly, the time periods mentioned in the Bill for network operators to fulfil the registration processes were insufficient. Secondly, they stated that there was no need to record the MSISDN, IMEI and IMSI numbers. Thirdly the provisions in relation to registration of foreigners wishing to have roaming access were unworkable. They feared that the provisions would create complications for both consumers and operators and could adversely affect tourism. The Department of Justice noted that these concerns had previously been raised before the Portfolio Committee. It had declined to accept the submissions in relation to the second and third areas, and had called upon the operators to provide updated information directly to the Committee in respect of the numbers to be processed, which all operators had failed to do, citing instead the figures provided in 2006 to the Committee. In the absence of further proof substantiating the objections in regard to the time periods, the Portfolio Committee had retained the twelve month period.  A number of questions were asked by Members around these three points, answered by both the operators and the Department of Justice. It became clear that there were some misunderstandings on the technical possibilities, and the Department suggested that since the representatives attending from the operators were not themselves technical people, it should arrange a meeting to thrash out the technical issues and try to reach a middle ground. The Standing Committee made the point that it was not bound by the decisions of the Portfolio Committee and would try to achieve a compromise. The matter would be further discussed on 6 November.

MINUTES
The Chairperson noted that there had been a previous briefing by the Department on the Regulation of Interception of Communications and Provision of Communication Related Information Amendment Bill (the Bill). He asked the representatives of the network operators to address the Committee on their concerns around the Bill.

Mr Pakamile Pongwana, Managing Executive, Regulatory Affairs, Vodacom, stated that whilst the service providers did not oppose the concept behind the Bill, there were still three problematic areas, which had already been described to the Portfolio Committee on Justice and Constitutional Development. . The registration period was set at twelve months, which was too short considering the number of pre-paid subscribers to be registered. Other issues - such as the need for verification of ID documents, and the problems around the national address system - would compound the difficulties. He cited the recent experiences with the registration of driving licence, and implementation of the Financial Intelligence Centre Act and predicted that similar problems would occur with this legislation.  The current operators had between 35 and 38 million subscribers, of whom only about 5 million were already registered as pre-paid customers. Vodacom had undertaken a test with its own employees, over four months, and had only managed to register 675 000, although admittedly this had not involved advertising and marketing. This seemed to indicate that a much longer period would be needed. The Bill provided that if subscribers were not registered within 12 months, then they should be disconnected (except for emergency services). Perhaps inducements to register should rather be offered. Vodacom suggested that it would be desirable to include in the Bill a provision that an extension could be given by the Minister, on proof of how many subscribers had already been handled, and how many remained.

The second issue related to the requirement that in-coming visitors to the country should have to register their phones before network roaming was allowed. This was an unsound requirement, quite apart from the negative effect predicted upon the tourism industry in South Africa. Roaming agreements were not signed with individuals, but with hundreds of worldwide network operators. A roaming facility would allow a person to choose and log on to any network giving coverage in that area. Requiring registration would mean that the visitor must register with three operators in South Africa. This would lead to delays at ports of entry. No other country in the world required registration of foreign cellphones.

The third issues concerned the requirement of registration of all three MSISDN, IMEI and IMSI numbers. The operators believed that registration of only the MSISDN number was sufficient as this would allow for a history to be produced as to the numbers dialled on that number, and where it had been used, as well as the identification of the phone handset and serial number. He indicated that it was not only the operators who sold handsets, as these could be bought from a number of stores and outlets. He enquired whether all stores would be required to register the cellphone sales. There was also a possibility that with certain technology, no SIM cards would be required.

Ms Louina Nunan, Senior Legal and Regulatory Advisor, MTN, said that a few weeks ago she had witnessed frustration and resentment by tourists who had been delayed at the airport and were at risk of missing part of the sporting matches they had flown in specifically to attend. From an economic perspective, if there were to be further delays on cellphone registration queues, this could have an impact on the tourism industry. The operators would like to find an efficient way to register subscribers without hindering the economy.

Ms Nadia Bulbulia. Head, Regulatory Division, Cell C, noted that the implementation must be reasonable, practical and possible. The implementation period of six months required to get systems in place was a technical issue, but she pointed out that the implementation periods granted under similar legislation usually permitted periods of eighteen months upwards. The requirement that a tourist must register was, because it was unique to this country, unchartered, and expectations of tourists must be considered. The restrictions on roaming created technical problems. She urged that before legislating, the Committee must be assured that the changes would be feasible, so that operators, through no fault of their own, would not be forced to fall short of requirements. Cell C had 394 agreements with other networks, which would provide a range to be opened up. She concurred with the other operators that this was a network-to-network agreement, which did not concern individual subscribers, and it was not technically possible to block or allow individual numbers in that range. A provision to force registration of individual roaming numbers would effectively mean that there could be no roaming at all.

Mr Lawrence Bassett, Chief Director: Legislation, Department of Justice, noted that all issues had been aired before, but notwithstanding those comments, the National Assembly had resolved to pass the legislation. The aim of the legislation was crime detection and prevention. If there were any loopholes it would render the legislation meaningless. That was the reason for the roaming restrictions, as well as for the registration of the numbers. The information needing to be captured was used as information in the Courts. He understood that other information could be obtained from the one MSISDN number, but noted that this information would not include proof that the owner of the handset was also the owner of the SIM card. The Portfolio Committee had considered exactly these representations, but decided that the overall aim of the legislation outweighed the objections. In respect of the time periods, the Portfolio Committee had invited the network operators to provide information that would justify the Committee considering a variation of the 12 months but because no information had been forthcoming,  the twelve months period was retained.

Mr Sarel Robbertse, State Law Advisor, Department of Justice, added that there had been no response by the operators to a number of specific requests in writing by the Portfolio Committee. 

Mr Robbertse reiterated that the legislation would be worthless if there were to be loopholes. Criminals using imported handsets and overseas SIM cards could not be traced without the registration. There was no prescription in the Bill as to how the registration should be done, and that was left to the operators to decide how best to do so, and how they could best obtain the information. The same was true of the registration process for the IMEI, IMSI and MSISDN numbers. All were required to ensure that no cell phone or SIM card could be used to make or receive calls until all numbers were captured. The operators were free to devise the best system - which could be merely by the operators making the initial call on that phone - that would capture the information.

Ms Ina Botha, State Law Advisor, Department of Justice, said that the aim was to allow the Department and crime prevention agencies to have enough reliable information timeously and legitimately available to detect, prevent and solve crime. She noted that internet research suggested that prepaid roaming cards could be purchased overseas. She understood that agreements were presently operator-to-operator, and that information would be available from overseas operators. However, the process of getting that information across borders would delay and hinder law enforcement agencies, as it would involve Interpol, consideration of privacy issues in the foreign countries.

Ms Botha pointed out that citizens of South Africa were being required to register. There was no cogent reason why the same should not apply to visitors to the country.

Ms Botha pointed out that there could not be direct parallels drawn with the driving licence and financial institutions' requirements, as neither the systems nor their problems were the same. 

Discussion
The discussions by Members related to the three issues raised, and are summarised below under those topics.

Time periods
Mr D Worth (DA, Free State) noted that when the National Assembly had considered the matter, it had been opposed to granting a further extension of 12 months, because service providers already had had ample opportunity to register at least two thirds of their subscribers.

Mr Pongwana responded that the Bill had appeared in its current form only in 2005/06. The first draft was released some time ago, but this had originally required paper-based registration. After input from the operators, it was agreed that electronic processes could be adopted. He pointed out that it was impossible to predict what form the Bill would finally take. It would be risky to start to register certain fields, when these might be changed. Although the operators had tested various registration systems internally, including the possibility of using agents, and certain devices, it had not been possible to pre-empt what would be the final requirements.

Ms Bulbulia added that all providers had been putting the preliminary systems in place, employing staff, and getting registration terminals. She agreed that it was only within the last year that the requirements of operators had been more clearly stated, and she believed that their efforts to date must be recognised.

Mr A Moseki (ANC, North West) noted the complaints in regard to insufficient time, and mentioned that consumers in South Africa were not always swift to respond to registration requirements. He asked what alternative proposals the service providers would make.

Mr Pongwana proposed that the period should range from 18 months to 36 months, with a demonstration of progress made during the period, and that the relevant Minister be given a discretion to determine whether there needed to be extension . Review on a six-monthly basis would ensure that the providers would implement as fast as possible. Taking into account the broader objectives of the country, the suggestion to cut off services to subscribers that were not registered after 12 months was not acceptable. He suggested that a phased approach could perhaps be introduced - such as the operators warning people that unless they registered within a warned period, their outgoing calls could be blocked, then perhaps if they did not register again, then only emergency calls could be allowed.

Ms Nunan added that failure to register within 12 months might have limitations on the access of foreign students.

Ms Botha reiterated that the Portfolio Committee had called for data, and specified that it could be provided in confidence, to the Committee. The Committee had not been satisfied as to how many of the 34-million SIM-cards were in fact dormant, or what was the active number of cards requiring registration. Because the information was not provided, the Portfolio Committee was unable to amend the period. Besides that, the Portfolio Committee believed that the time requirement should be set by parliament, and not by the executive. Insofar as the suggestion to "soft-lock" by blocking certain access was concerned, she was not sure that it should be up to the operators to soft-lock or regulate the industry.

In response to the soft-locking, Mr Pongwana noted that network operators were permitted to soft-lock  phones, and this was normally done to limit a child's phone calls, or to limit spending on a particular number per month.

Ms Nunan wished to stress that the information on the number of subscribers and the proposed registration points was provided on  14 November 2005 to the Department of Justice, in hard copy.

Vodacom said that he could also cite examples of a letter submitted to this Committee the day before the National Assembly deliberations, which had been acknowledged as received only three days after the debate. Vodacom could give copies of all documents sent on the different issues. There was a need to have someone present who had understood what had happened

Requirements for registration of roaming phones
Mr Moseki noted the service providers' concerns around registration of tourists. He asked what experiences there had been leading to the Department's proposals, and what gaps these  intending to address.

Mr Pongwana stated that the main concerns revolved around these technical issues. A foreign traveller to South African, wishing to be contactable, would ask for activation of roaming. On arriving in the country, his phone would automatically switch over to roaming. However, this was not an individual contract with a South African operator. It was a wholesale service that applied between South African and foreign network operators. It was from a practical point of view not possible to block an individual from the roaming facility if he had not registered. South Africa should be looking to other countries that had registration requirements and note that no restrictions had been placed on foreign roaming, precisely because technically it was not a sound system to implement. This problem was quite apart from the problem of delay.

Ms Botha said that although information on roaming phones was to be captured, there were no specifications as to how this must be done. She noted that this Committee would have to decide if there had been sufficient proof that there was no practical and affordable way to register foreigners. She suggested that if there were agreements with hundreds of  cellphone operators there should surely be the possibility of coming up with an individual roaming registration process. It was not expected, even in respect of South African citizens, that the registrations must be done directly by the operators; they would be permitted to use agents. Most of the  details of those requesting roaming would already be on file in the foreign country and could surely be conveyed to the South African operators, ready for access by law enforcement agencies.

Mr Pongwana wished to correct any misperception that there was such a thing as "pre-paid roaming". Roaming facilities were only available for persons who had a contract with a network, so that costs could be recovered. The originating network would have the details of that person. In practice, the requirement of registration would not close the loopholes, and he doubted whether closing every loophole was ever possible. Criminals intending to commit a crime in a country would in reality enter the country, get a false ID, buy 20 phones, use them once and dispose of them. In the criminal world mobile phones were referred to as "throwaways". Although it was already possible to track patterns of calling and note where the phones were used, this was of little practical use when the crime had been committed and the phone disposed of.  This information and data had been provided to both the Departments of Justice and  Communications. The provisions of the Bill were not implementable from a practical point of view and any attempts to close loopholes must be practical.

Mr Pongwana noted that there was an Office of interception that could get Court orders to intercept calls where it was suspected that the phones were being used for criminal purposes. In addition, a situation might arise where the South African Police Services (SAPS) would ask for and obtain assistance from the operators in obtaining details of a particular phone. He suggested that a better way to address the loopholes was to be found by discussion with SAPS and the operators, and that loopholes could be closed by mechanisms other than legislation - such as tracking with a warrant.

Ms Bulbulia agreed that there was a need for meeting of minds on practical considerations. The operators took the matters very seriously, and were prepared to make further input.

Mr J Le Roux (DA, Eastern Cape) noted that the whole world had a problem with crime. He asked why only South Africa had the provision for roaming registration.

Dr F van Heerden (FFP, Free State) said that there were clearly certain mechanisms available to close the loopholes, and suggested that the Department must have further discussions with the network operators, as their concerns appeared to be valid. This was a complex issue requiring practical solutions.

Mr Pongwana said that there was a need for a decision in principle whether to permit roaming. He reiterated that it was not practically possible to block access for one individual. The revised Section 40(1) provided that  the operators could not activate a SIM card or activate a cellphone unless details were registered. However, for roaming facilities, this was done overseas and thee would be automatic service from country to country based on the wholesale arrangements.
 
Mr Robbertse noted that the legislation was worded "may not allow a foreign user" - and so a foreigner must be locked out until there was compliance with the Act. Allowing foreign phones to be used would equate to allowing a customer in South Africa to use his phone without registering.

Mr Pongwana reiterated that roaming could only be done by contract customers. No network in the world allowed a person to buy a SIM card, load air time and make roaming calls.  If parliament was insistent on requiring blocking of roaming for any reason, then it would effectively be cutting out all roaming agreements. A person wanting to use a phone in South Africa would then buy a SIM card in South Africa, but there would be a problem in dialling cellphone numbers overseas because there would be no agreement for overseas access. USA had originally not provided roaming facilities to visitors, simply by reason of using AMPS instead of GSM technology, but had realised that this was closing off the rest of the world, and had taken steps to allow roaming. Perhaps with new technology it might be possible to block individuals from roaming facilities, but at present it was not possible.

Ms Nunan summarised that essentially foreign network operators were clients of the network operators in South Africa. Individuals were not clients and privacy issues would apply.

Mr le Roux asked if the passing of the legislation in its current form would then mean that there would be no roaming in South Africa.

Mr Pongwana confirmed that this would be the result. He pointed out that there were penalties included in the Act, which would act against the operators even in cases where it was not possible for them to comply .

Information to be registered
Mr Pongwana asked again whether it was envisaged that it would be the responsibility of the operators to capture details of a phone sold - or offered as a free gift - by any store.

Mr Worth understood the intention of combating crime. However, he thought it unlikely that a criminal would use his own phone for an armed hold-up; he would be most likely to steal or buy another phone.

Mr Pongwana added that a cellphone could already be linked to a computer and have its IMEI number changed. Business Against Crime had noted that a phone blacklisted in South Africa could simply be exported out of South Africa. Vodacom was prepared to issue advertisements to consumers to ensure blacklisting.

The Chairperson asked if a person's phone could be traced if, as the operators suggested, only the MSISDN number were to be recorded.

Mr Pongwana responded that phones were not just sold by the operators, so that the operators would not know about the sale of handsets if not recorded. However, the SIM card was necessary to use the phones in South Africa (in USA this was not necessary, because of different technology.) Therefore, it was possible for a phone to be stolen and used to commit a crime. The present registration mechanism required allocation of certain individual to each operator. It was possible to pick up which were in the distribution channel, and which had been activated. The operators would call a number redundant if it had not been used for three to seven months, and it would be reallocated. The reason for existence of the Office for Interception was to permit data-mining. Even it was not possible to link a stolen phone to a particular number and individual immediately, this could be traced through a data-mining process on another database. When the registration was linked to a SIM-card number, it was possible to assess that this SIM card was used in a particular phone at a particular place. The owner of the SIM card could be ascertained. This did not need to be legislated - the provision was already available. SAPS would use the trails in proving their cases. If the phone was stolen, it might be possible to link to the individual who used the phone.

Ms Bulbulia added that when the MSISDN was activated, the IMEI and IMSI numbers were activated immediately. If the police requested the details of the MSISDN, or the name, the other numbers would also come up. A practical problem, and one of the main concerns, was that the inputting of multiple-digit numbers would inevitably lead to errors.

Ms Botha reiterated that it was necessary to have trustworthy and readily available information in South Africa for detection of crime. Having to data mine would involve time and its own problems.

Mr Z Ntuli (ANC, Kwazulu Natal) asked about the addresses used by service providers, particularly in informal settlement and rural areas.

Mr Pongwana said that the Department of Justice had gone some way to addressing the problems that arose from lack of a comprehensive national address system. In rural areas, a Chief could sign an affidavit to help individuals prove their residence in a locality. People were able also to use the addresses of businesses or community centres or shops. These issues compounded the complications of data requirements. Lessons would be learned from the practical implication.

Summarised submissions
The Chairperson asked each representative to give a summary.

Cell C submitted that the 1 January 2008 date was not realistic, the time period to conclude registration would not be feasible, and that South African should try to avoid being the one country in the world where roaming was not possible. Operators were good corporate citizens, and would try to support crime prevention and implementable legislation.

Vodacom assured the Committee that all operators were prepared to implement the legislation. They wanted to assist Parliament and the Executive to produce practicable, implementable and workable legislation. Cooperation in the fight against crime went further than any legislation, and involved other dimensions and other stakeholders. He thanked the Committee for the opportunity to engage in such a meaningful way.

MTN noted that cellphones had moved from being luxury items to necessities, particularly in the rural areas. The wording and implementation of the Bill was very important to avoid repercussions to the operators and communities. The industry had been setting up working groups relating to fraud, grey phones and blacklisting. Finances and manpower were invested in these important issues. It was important to work together to ensure the interests of the economy and communities.

After the representatives of the network operators had left the Committee continued with further discussions on the Bill.

Discussion
The Chairperson felt that the comments had made sense. He appreciated the conveying of information from the Portfolio Committee. However, he cautioned that this should not imply that this was the end of the matter. The NCOP committees must consider the matters independently and were not bound by the Portfolio Committee decisions.

Mr Moseki noted that the country was already under criticism for the difficulties and costs of doing business, and the amount of red tape. The Department was correct in being careful to try to cover issues of security. However, he felt that good points had been made on the problems. He thought that there was a need to find a middle road.

Mr Moseki was particularly concerned about the time frames. Although the parallels drawn might not be fully justified, the reality was that South Africa should be careful to impose time limits that could not be met. He felt that the suggestion of thirty six months was too long, but that a middle ground could be found.

Mr Worth expressed his view that the operators could be put to terms to register within twelve months,  unless they provided proof that they absolutely could not do the registrations in this period.

Mr Bassett said that there was no technical information given on what was required from a practical point of view.

Mr le Roux noted that the drafters were lawyers, not technical people. The providers had noted that it was "technically impossible" to register roamers. He wondered if there had ever been evidence that this was indeed technically possible.

Mr Worth noted that all visitors to South Africa must fill in an immigration card. He wondered if it was not possible to insist that the cell phone details be inserted on that card. He admitted that some people might give a false number or no number; but the majority would be covered in this way.

Mr Bassett said that he had been given to understood that a roaming facility could be blocked unless registered, but was now hearing the opposite. He would like the opportunity to get clarity.

Mr Bassett noted that the drafters would take the roaming issue back to their principals, for a view on whether there was the possibility of compromise.

The Chairperson said that the principals, being the Executive, no longer had a prerogative to comment.

Mr Ntuthuzelo Vanara, Parliamentary Legal Advisor, agreed that this was a Parliamentary Bill, and the executive had already made its decision when deciding to approve the Bill. Parliament would determine what was included. He noted that consultation should not go in cycles. He noted that there had already been consultations with the service providers, which did not seem to have worked, and surely the technical issues should have been raised before. There was still a level of uncertainty. He questioned whether this Committee needed to extend the levels of consultation. Both sides had been heard, and both agreed that there seemed to be a need for consultation, yet did not seem able as yet to accommodate each other.

Dr van Heerden pointed out that whether or not the Department wished to consult their principals, he would support consultation on a technical basis with the service providers. He did not believe this Committee could take the matter any further before receiving a redraft of the Bill from the Department.

He noted that other pieces of legislation dealt with similar issues and asked that the relationship be checked. He asked what would be done about the providers who sold handsets, with starter packs to be purchased elsewhere.

Mr Bassett noted that a person buying a handset there would be required to go to a registration point put up by the network operators, before being able to use the phone. The handset, SIM card and other information required would have to be registered first.

The Department then gave some responses and made further points in relation to the questions raised in the earlier discussions.

In relation to the time frames, Ms Botha confirmed that indeed information had been provided to the Department in 2005. The Portfolio Committee had expressed concerns on the accuracy of the information, based on information received from other sources, and had therefore requested audited figures in June 2006. Figures were certainly given to the department, but no figures had been given to the Committee.

Mr Robbertse added that South Africa was not the first country in the world to implement this process. All other countries had allowed six months for registration. The current Bill was allowing six months more.

In response to the registration of all the IMEI, IMSI and MSISDN numbers, Mr Bassett said that if a SIM card alone was registered, it would be possible to pick up the IMEI number. However, the Department wanted all the various components to be registered before a cellphone could be used. Registration of the MSISDN number only would not achieve every component being registered against a known person's name, for use as evidence. He had noted the comment on data mining, but the Department did not want to have to go this route, but rather to have all the information available at one source.

Mr Robbertse added that the Bill envisaged locking a SIM card to a specific cellphone. If a person attempted to use that SIM card in another, non-registered phone, the call could not be made. This would allow tracing of the registered owner of a specific handset. If a SIM card was locked to a cellular phone, the handset could never again be used without an ID and particulars being requested. In the case of a person who had simply failed to register within the requisite time period, he would not be precluded from ever using the phone. However, any request to allow a handset to be used could be traced.

In response to the foreign roaming issues, Ms Botha noted that when a SIM card was stolen, a person should report the loss in terms of Section 40(1) so that the number could be blacklisted. The Department had understood that if this was possible, then it should be possible also to block other numbers. It was difficult at this point to determine with any finality what could and could not be done, especially since the representatives attending today had not themselves been technical representatives. A follow up meeting was probably worthwhile.

Mr Robbertse agreed that there would need to be further discussions as to how the Bill could be re-drafted. However, not all the points made were entirely valid. In other countries, where roaming agreements may not exist, this was not necessarily a bar to foreigners opting to visit. In principle it had not been explained why foreign visitors should be in a less onerous position than own citizens, in regard to registration, as the same reasons for registration applied.

Mr Bassett noted that the roaming requirements could be exempted for large events like the 2010 World Cup. He pointed out that only the personal particulars of the roamers would need to be registered; not all the details that would be required of South African citizens, so that the information was not burdensome.

Mr Vanara noted that the concerns raised by the industry were not so much as to what the operators were able to do, but whether customers would come to register. Except for a provision to say that people must register, there was nothing to compel them to do so. South Africa was not living in an ideal society and not everyone would respond. He suggested that the Bill should contain a specific provision.

Mr Robbertse replied that Section 62 of the Act would provide that if there was not registration within a period of twelve months, service would be terminated. However, there was nothing preventing that person from requesting a re-connection once the details were provided. 

Mr Vanara finally commented upon the suggestion as conveyed that there should not be delegation of powers to the Minister in respect of possible extensions of time. He did not believe that there was anything unconstitutional in delegating such powers to the Minister.

The Chairperson asked the Department to meet with and clear matters with the service providers. The Committee would be looking to finalise the matter at a further meeting on 6 November.

Other business
The Committee had been requested by the Portfolio Committee had requested an oversight visit, together with this Committee, to Pollsmoor Prison. Some Members would attend the oversight visit, and others would attend to a cluster meeting to consider annual reports.

The meeting was adjourned.
 


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