Privacy in Asia: Building on the APEC Privacy Principles The Current Framework and the Future Approach for Protecting Privacy in Japan October 22nd, 2013 Dr. Fumio SHIMPO Professor Keio University Faculty of Policy Management Email: [email protected] List of Questions to be addressed 1) What is the current framework for protecting privacy online in your country? 2) How do you assess the prospects for greater alignment/harmonization of national privacy regimes across the Asian region? 3) Will the resulting Asian approach to privacy protection differ in some respect from those now being developed in the US and within the EU; what implications does this have for global privacy governance? 4) What is the current framework for protecting privacy online in your country? 5) How do you assess the prospects for greater alignment/harmonization of national privacy regimes across the Asian region? 6) Will the resulting Asian approach to privacy protection differ in some respect from those now being developed in the US and within the EU; what implications does this have for global privacy governance? 7) Who are the key actors in the privacy debate in your country and what are their roles and powers? 8) How have data privacy regulations in your country affected businesses・utilization of cloud services and big data? Relationship with Personal Information Protection Laws in Other Countries GPEN (Global Privacy Enforcement Network) International Conference of Data Protection and Privacy Commissioners OECD Privacy Guidelines Recommendation on Cross-Border Cooperation, Security Guidelines, etc. Japan’s task is to participate in the network of cross-border OECD member countries that work together on the protection of personal information Japan USA Act on the Protection of Personal Information Individual laws (International conference of personal information protection authorities) •Japan is an observer •Establishment of an internationally-accepted “Independent personal information protection organization” is a requirement •Standard for authorization as data protection organization •Legal basis •Autonomy and independence •Consistency with international instruments •Appropriate functions EU Data Protection Directive Data protection directive that regulates transfers of personal data to third-party countries Japan’s task is to satisfy the EU-specified “adequate level of protection” Privacy Framework European Data Protection Regulation (draft) Cross-Border Privacy Rules (CBPR) Cross-border Privacy Enforcement Arrangement (CPEA) Japan’s task is to create a system of cross-border execution cooperation which can be utilized in cases of cross-border personal information leakages APEC ©2013 Fumio SHIMPO APPA (Asia Pacific Privacy Authorities) (January 25, 2012) ・Establishment of an independent personal information protection organization is a requirement ・More rights for data subject (The “right to be forgotten,” data portability) ・Security (duty to report information leakages within 24 hours) ・Management responsibilities (data protection impact assessment, data protection seal or mark system) ・Transmitting personal data (consistent procedures) 1. History of Personal Data Protection Systems in Japan Local Government Regulations Local governments worked quickly to adopt their own personal data protection regulations before the enactment of the OECD guidelines OECD Privacy Guidelines : 8 OECD Principles Start of personal data protection systems management Administrative Agency Personal Protection Laws Establishment of personal data protection laws (national administrative agencies only) ‘Law relating to protection and management of personal data stored on administrative agency computers’ (December 16th, 1988 Law No. 95 ) Dealing with the Private Sector ‘Guidelines for personal data protection in the private sector’ - Japan Information Processing Development Corporation (JIPDEC) (1988) ‘Guidelines relating to the protection and management of personal data on computers in the private sector’, (March 4th, 1997, Ministry of International Trade and Industry proclamation, No.98) Privacy Mark System ‘Privacy mark system’ (effected, April 1st, 1998) JIS Q 15001, ‘Personal data protection compliance program requirements’, (established March 20th, 1999) JIS Q 15001, ‘Personal data protection management system requirements’, (established March 20th, 2006) 2. History of Establishment of Laws Relating to Personal Data Protection (Japan) July 14th, 1999, Agreement on formation of ‘Personal Data Protection Investigation Unit’ (Chairman, Masao Horibe, Professor, Chuo University’s Faculty of Law) October 20th, 1999, Announcement of paper 'Regarding Protection of Personal Data' (Central theme, Chairman’s plan) November 19th, Announcement of 'State of Personal Data Protection Systems in Japan‘, by High-Tech Telecommunications’ Society Promotion Committee’s Personal Data Protection Investigation Unit (Mid-Term Report) February 4th, 2000, Formation of 'Personal Data Protection Legislation Specialist Committee‘, (Committee Chairman, Itsuo Sonobe, Professor at Ritsumeikan University’s Graduate School) (Session No.28) October 11th, 2000, Agreement on 'Fundamentals relating to Personal Data Protection Laws' Drawing up of proposed legislation in accordance with fundamentals. Submitted as Cabinet Legislation No.90 to the 151st Diet on March 27th, 2001. April 18th, 2001, Formation of 'Administrative Agency Personal Data Protection Law Research Group' (Chairman, Takashi Mogushi, former Director-General of the Cabinet Legislation Bureau), presided over by the Secretary to the Minister of Internal Affairs and Communications on approval of the Minister. March 15th, 2002, Submission of Cabinet Legislation Nos. 70-73 to the 154th Diet. December 13th, 2002, five personal data protection bills rejected by the Lower House Committee of the Cabinet. March 7th, 2003, five revised personal data protection bills, Cabinet Legislation Nos. 71 – 75, submitted to the 156th Diet. May 23rd, 2003, five personal data protection bills approved and formally announced on May 30th. 3. Laws relating to Personal Data Protection Approved on May 23rd, 2003, formally announced and enacted on May 30th. Regulations in Chapters 4-6, and additional regulations in Articles 2-6 imposing specific responsibilities on companies handling personal data under the Personal Data Protection laws and Administrative Agency Personal Data Protection laws, enacted April 1st. 2005. Act on the Protection of Personal Information Act on the Protection of Personal Information Held by Administrative Organs (2003 Law No.59) Act for Establishment of the Information Disclosure and Personal Information Protection Review Board (2003 Law No.58) Act on the Protection of Personal Information Held by Administrative Agencies (2003 Law No.57) (2003 Law No.60) Act on Preparation of Relevant Acts Accompanying Effectuation of the Act on the Protection of Personal Information Held by Administrative (2003 Law No.61) 4 Overall Outline of Personal Data Protection Laws in Japan Basic Policy Personal Data Protection Laws Administrative Agency Personal Data Protection Laws Basic Policy (basic policy on personal data protection approved by the Cabinet) Basic laws and laws relating to the private sector (laws and ordinances regarding the protection of personal data) Laws relating to administrative agencies in the public sector. (laws and ordinances concerning administrative agency personal data protection) Protection of personal data by following regulations with the aim of personal data protection under each individual law (existing laws such as ‘The Dispatch Industry Law’ and ‘Employment Security Law’) Individual Laws Laws with regard to legal liability concerning leakage and misuse of personal data. (‘Unfair Competition Prevention Law’) Privacy protection obligation regulations from a professional standing. (‘Public Servant Law’, various industrial laws) Personal Data Protection Regulations Local government personal data protection regulations. Guidelines for each Ministry in accordance with Article 8 of the Personal Data Protection Law. JIS Q 15001 'Personal Data Protection Management System, Requirements' Guidelines Standards and guidelines in accordance with laws (guidelines adhering to ‘The Industry Standardisation Law’ and ‘Provider Limited Liability Law’) Administrative agencies setting guidelines for themselves (safety management and use of telecommunications technology) Setting guidelines for private organisations and the private sector (business world guidelines) Application of the Act on the Protection of Personal Information Private sector Public sector Act on the Act on the Protection of Protection of Personal Personal Information Held by Information Held by Independent Administrative Act on the Protection Administrative Organs of Personal Information Agencies, etc. Act for Establishment of the Information Disclosure and Personal Information Protection Review Board Act on Preparation of Relevant Acts Accompanying Effectuation of the Act on the Protection of Personal Information Held by Administrative Organs Ordinances in local governments 1742 bodies (As of Oct 1, 2012) Basic principle Responsibilities of the state and local governments Measures for the Protection of Personal Information, etc. Basic Policy portion Basic Policy on the Protection of Personal Information ©2013 Fumio SHIMPO Ministry of Economy Trade and Industry Financial Services Agency Ministry of Land, Infrastructure and Transport Land transport Real estate distribution companies General operations Credit information Ship crew employment management Medicine / nursing Credit retrieval Medical information systemsSafety management Ministry of Justice Medical information management Financial safety management practice guidelines General employment management Personal genetic information 5. Areas for Establishing Ministerial Guidelines Relating to Personal Data Protection Laws Human genome / genetic analysis research Genetic therapy clinical research justice schools Telecommunications Health information Human hepatic cell clinical research Ministry of Health, Labour and Welfare Worker dispatch Employment introduction Epidemiological research Clinical research Welfare Police mutual aid association Ministry of Education, Culture, Sports, Science and Technology Broadcasting Postal Service Correspondence service Ministry of Internal Affairs and Communications Trade unions Health insurance union National health insurance union Local public employee’s mutual aid association Ministry of Defense Ministry of Finance Ministry of Agriculture, Forestry and Fisheries defense finance Agriculture, forestry and fisheries Corporate pensions National Public Safety Commission Ministry of Foreign Affairs police Foreign affairs Italics = communication / Underline = notification ©2013 Fumio SHIMPO Land Infrastructure and Transport Employment Education Police Agriculture, Forestry and Fisheries Ministerial Guidelines Medical Services Financial and Credit Services Telecommu nications Justice Finance etc Basic Policies Individual Investigation Measures Revision of Guideline Policy Settlement Personal Data Protection Law Article 6 3rd Clause Article 7 Article 8 Individual laws, other measure management Basic policy settlement Settlement of guidelines other necessary measures Secondary Resolutions Financial and Medical Services Credit Services Telecommunications Enterprises under the jurisdiction of Personal Data Protection Law Article 36 1st Clause Welfare Overall Enterprises 6. Ministerial Guideline Policy Decisions / Basis of Revisions PrivacyMark System For enterprises that have prepared a management system in compliance with requirements of JIS Q 15001 for the protection of personal information, and properly handle personal information Assessed and certified by third-party organization JIPDEC (and its specified organs) The system allows the use of the PrivacyMark logo as proof of certification ©2013 Fumio SHIMPO Report of the Study Group on the Use and Flow of Personal Data - Measures to Promote the Proper Use and Flow of Personal Data (Summary) Ministry of Internal Affairs and Communications, Japan Study Group on the Use and Flow of Personal Data utilisation of Big Data Issues related to Protection of Privacy etc. Dissemination and development of ICT Capable of using a large volume of diverse information so-called “big data”, including personal data(information about an individual) ● Uncertainty of rules for personal data and privacy protection obstructs development of new types of businesses using personal data Making it possible to provide a variety of services that match the needs of each individual better ●Increase of concerns about privacy due to accumulation and use of a large volume of information about individuals Measures by MIC It is necessary to make rules for personal data utilisation clear , considering harmonisation between free flow of information and privacy protection etc. Ministry of Internal Affairs and Communication s, Japan has held the Study Group on Use and Flow of Personal Data. ※Following the various discussions concerning the scope of protected information related to an individual, the Study Group defined ‘Personal Data’ as information about an individual in general, not limited to information which is personally identifiable and defined as ‘Protected Personal Data’; ie. information about an individual to be protected. Members Meeting schedule ◎Masao Horibe, Professor Emeritus at Hitotsubashi University ○Shigeo Tsujii, Professor at Chuo University Fumio Shimpo, Professor at Keio University Masahiro Sogabe, Professor at Kyoto University Hiroyuki Kuwako, Japan Data Communications Association Hisamichi Okamura, Attorney, Visiting Professor at National Institute of Informatics Miki Nagata, National Federation of Regional Women’s organizations Naohiro Yoshikawa, ATKearney Hiromichi Yasuoka Nomura Research Institute The other members include representatives from businesses and local government etc. (Observers) Consumer Affairs Agency , METI ◎Chair, ○Vice-Chair ▲ 1st (Nov.1,2012) ▲ 7th(April 3,2013) Held once or twice every month Points of Issues Discussion based on presentations by the members or other people ▲ 8th(May 14,2013) Draft Report ▲ 9th(June 11,2013) Report (Released on June 12,2013) Request for Public Request for Public Comments Comments Cabinet level meetings ・Industrial Competitiveness Council ・IT Strategic Headquarters ・Regulatory Reform Council Recognition of importance of making good environment for personal data utilisation Report of the Study Group on the Use and Flow of Personal Data (Summary)① Directions for Prompt Implementation (1) System of Personal Data Utilisation Framework • It is important to harmonise the promotion of a framework of personal data utilisation and the appropriate protection of privacy. • It is vital to maintain and reinforce people’s trust in the appropriate handling of personal data in order to promote its utilisation. • It is necessary to make rules for personal data utilisation clear. The Scope of “Protected Personal Data” • Basically, it is appropriate to define the scope as ‘Personal Identifiability’, and it is necessary to make a substantial judgement in the light of privacy protection. • ‘Protected Personal Data’ is considered to include any identification data on any individuals’ PCs and smartphones as well as continuously collected information, such as purchase history data. The Content of Rules for Personal Data Utilisation • ‘Protected Personal Data’ is classified into the following three types according to the level of privacy: ✓General personal data (e.g., widely known information, public information, and business-related information, such as business card information); ✓ Personal data which requires careful handling (e.g., address book, location, and subscriber information on smartphones); ✓ Sensitive data (e.g., information on thoughts and creeds and health information). • Personal data should be handled in accordance with the context at the time of data acquisition and with the level of privacy of the data. Report of the Study Group on the Use and Flow of Personal Data (Summary)② Directions for Prompt Implementation (2) Method of Rulemaking for Personal Data Utilisation • Good use of multi-stakeholder processes (i.e., an open process which includes a variety of parties, such as the government, enterprises, consumers, and experts etc). Method of Securing Compliance with Rules for Personal Data Utilisation • Incorporation of privacy policies into contracts. • Establishment of bodies consisting of experts which present opinions on rules for personal data utilisation and resolving of disputes. Utilisation of Technologies for Personal Data Protection(Anonymisation, Cryptography etc.) • In order to promote utilisation of personal data, it is appropriate to make the maximum use of technologies to protect privacy (eg, anonymisation and encryption). • It is considered that anonymised data, of which re-identification is impossible or sufficiently difficult, can be utilised freely. Securing free flow of personal data beyond borders • In order to ensure international free flow of personal data, Japan should actively contribute to discussions for international rulemaking. Report of the Study Group on the Use and Flow of Personal Data (Summary)③ Directions for Full-Scale Implementation • The voluntary efforts of business operators and operational improvements in the current system will not have sufficient legal binding power. In order to ensure consistency and stability, institutional efforts, such as a review of the Act on the Protection of Personal Information is essential. • As a result, international expansion of enterprises and the effective trans-national use of big data etc. will become easier, thus contributing to the realisation of world-wide, highly literate ICT society and economic growth. The Need for the study of the following items by the Japanese Government. ● Privacy Commissioner System Appropriate for Japan • It is essential to establish a system in which knowledgeable human resources deal with issues relating to personal data ‘horizontally’, in a prompt and proper manner, making substantial judgments in order to secure people’s trust. • Many countries including the US, the EU and other developed countries have independent supervisory bodies, (Privacy Commissioners) for personal data protection. Under the present circumstances, there exists an international environment for Privacy Commissioners of respective countries to exchange views and adjust policies relating to personal data. ●Method for Securing the Effectiveness of Multi-Stakeholder Processes etc. • Institutional arrangements to ensure compliance of enterprises and other organisations with their own policies or rules declared voluntarily. • Incentives for enterprises to participate in multi-stakeholder processes. • A mechanism to ensure privacy protection by enterprises not participating in multi-stakeholder processes protect privacy. ●Other Issues relating to the Current Law (Act on the Protection of Personal Information). • Treatment of small businesses, shared use, certification systems to ensure substantial privacy protection, etc. Change in and Forecast of the Number of Domestic Smartphone Shipments Smartphones are continuing to make up a rapidly growing percentage of the mobile phones shipped in Japan, and are expected to reach 80% in FY 2013. (Units: million) 5,000 (万台) スマートフォン出荷台数 Smartphones 4,500 4,274 4,000 3,589 1,857 3,444 3,000 4,370 4,240 スマートフォン出荷台数比率 Smartphones, as percentage 4,260 860 1,130 3,764 3,500 フィーチャーフォン出荷台数 Feature Phones 80.3% 73.3% 82.6% 4,480 690 84.6% 100.0% 4,390 90.0% 85.6% 630 80.0% 740 70.0% 60.0% 56.6% 2,500 50.0% 2,909 2,000 3,479 3,210 3,510 3,520 3,790 3,760 3,110 1,500 22.7% 30.0% 2,417 1,000 500 0 40.0% 20.0% 6.8% 3.1% 110 234 FY200 08年度 8 FY200 09年度 9 10.0% 855 0.0% FY201 10年度 0 FY201 11年度 1 FY201 12年度 2 FY201 13年度 3 FY201 14年度 4 FY201 15年度 5 FY201 16年度 6 * Survey conducted by MM Laboratories (values from FY 2012 onwards are estimated). (“Recorded and projected numbers of smartphones shipped annually (as of March 2012)” (13th March 2012) and “Smartphone terminals shipped in Japan in the first half of FY 2012” (1st November 2012)). ©2012 Ministry of Internal Affairs and Communications Structure of Smartphone Services As for smartphones, a variety of business operators with different roles offer services in each layer. On the other hand, as for traditional mobile phones, mobile phone carriers offer all services from infrastructure to contents. Business operators which provide the operating system (OS) equipped with smartphones usually operate sites for providing applications and have an influence on each layer, such as the development of devices, use of communication networks, provision of applications, charging/authorization, etc. It is pointed out that an application developer gains certain compensation for incorporating information collection modules provided by an advertisement delivery business operator into applications and that user information may be transmitted to information collection business operators through information collection modules. Examples of the parties related to user information on smartphones Provision of individual apps Contents service layer Mobile terminal providers App. App. App. Application provision sites of contents business operators Mobile telecommunicat ions carriers App. Application provision sites of OS providers Mobile terminal layer OS providers Sites Application provision sites of mobile telecommunicatio ns carriers Application provision sites of device manufacturers Provision of places where apps can be provided to users Network layer Website operators for apps distribution App. Browsing Platform layer Apps providers & individuals Provision of information collection modules Advertis ement Ad. Service providers Advertis ement Advertiser Information collection providers Downloading apps WiFi WiMAX 3G network User Information Smartphone User ©2012 Ministry of Internal Affairs and Communications “Smartphone Privacy Initiative” Structure of the Guideline for Handling Smartphone User Information 19 Anxiety of users regarding user information should be eliminated voluntarily by responsible business actors. The Guideline provides the principles to which a variety of different stakeholders (including app providers who do not take part in the industry associations) can refer. Taking into account the status quo of the industry, the industry is encouraged to make their industry-specific guidelines by enriching and further developing the principles proposed in the Guideline. Fundamental Principles 1. 2. 3. Ensuring Transparency Securing the Opportunity of User Participation Ensuring Data Collection through Proper Means 4. 5. 6. Measures Undertaken by User Information Acquirers (e.g., Apps provider, information collection modules providers, Advertisement delivery service providers) 1. Making Application Privacy Policy ☞ A privacy policy including the following items should be created for each app and each information collecting module. Such privacy policy should be easily understandable and a simplified version or short notice should also be made available. i) Name of the apps provider who consent, and how the user acquires personal information; participates are ensured; ii) Details of the personal vi) Whether or not the acquired information to be acquired; information is to be transmitted iii) How to acquire such personal to the third party; whether or information; not it is transmitted to iv) Specifying and explicitly information collecting module explaining the purpose of providers; acquiring personal information vii) Contact point for queries; and v) How to notify and disclose viii) Procedure for changing privacy privacy policy, and acquire user policy 2. 3. Proper Management of User Information Special Instructions regarding Information Collection Module Providers and Advertisement Delivery Service providers Ensuring Proper management of User Information Properly Handling Complaints and Requests for Advice Privacy by Design Measures taken by other relevant business operators 1. Mobile Network Operators and Mobile Terminal Providers ☞ when selling smartphone services, etc. ☞ Application distribution portals operated by mobile telecommunication carriers 2. Application Distribution Portal Operators, and OS Providers ☞ Application distribution portals 3. Other relevant business operators ☞ Reviews on applications, etc. Guideline for Handling Smartphone User Information: Fundamental Principles 20 1 General Provisions To develop an environment in which users can use smartphones and services provided through them in a safe and secure manner, all the relevant business players are required to appropriately handle user information, thereby securing users’ trust in the provided services. (e.g. Providing sufficient explanation to users and ensuring transparency of services; ensuring substantive opportunities for user participation) Fundamental Principles 1. Ensuring Transparency Users should be notified of the details of the target information, its utilization and opportunities for user participation in case personal information is collected. Otherwise such details should be placed where that they are easily noticeable. In case of notifying users of the collection of their personal information, announcing it or acquiring consent from users, such notification, announcement and acquisition should be conducted in an easily recognizable and understandable manner. 2. Securing Opportunities of User Participation Relevant businesses operators should notify or disclose necessary details in case of collecting personal information (e.g., information to be collected, purpose of information usage, and a range of information that is to be provided to the third party). Users should be able to know how to stop personal data being collected and how to get involved in the process. 3. Ensuring Personal Data Collection by Proper Means Relevant businesses acquire target personal information by proper acceptable means. 4. Ensuring Proper Management of User Information Relevant businesses take necessary and proper measures in order to prevent targeted personal information from leaking, being lost or damaged, etc. 5. Properly Handling Complaints and Request for Advice Relevant businesses are required to respond to complaints and requests for advice regarding personal information. 6. Privacy by Design When designing new apps and services, relevant businesses should take into account how personal information should be handled and ensure personal information and privacy be protected and respected. They should well recognize the protection of personal information and privacy needs to be enhanced. From the users’ perspective, apps and services should be designed and developed in a user-friendly manner. Guideline for Handling Smartphone User Information: Specific Issues (1) 21 2 Specific Issues (1): Measures undertaken by Apps Providers, Information Collection Module Providers etc. 1. Creation of privacy policy The privacy policy that indicates the provisions below should be created, and displayed or hyper-lined in a easily recognizable and referable manner. (A simplified, summarized version or short notice should better be created and posted on smartphone screens. 1) Names of apps providers who acquire personal information: Indicate names and contact details, etc. of apps providers. 2) Details of the personal information to be acquired: List items and contents of acquired user information. 3) How to acquire personal information: Indicate whether personal information is acquired by users’ input or whether apps automatically collect personal information stored in smartphones. 4) Specifying and explicitly explaining the purpose of information usage Indicate whether user information is used for the purpose of service provision or for other purposes. In particular, if the information is used for advertisement or marketing purposes, it should be explicitly noted as such. 5) How to notify or disclose privacy policy, how to acquire user consent, and the way of user participation Indicate how to access the privacy policy, from whom the consent for personal data collection is to be obtained, and when the consent is to be obtained, etc. Also indicate the way of user participation and how users can stop their information being used. 6) Whether personal information is to be transmitted to an external third party and whether information collection modules are installed Indicate whether personal information is to be transmitted to a third party. Also indicate whether information collection modules are installed. 7) Contact for user query Indicate a telephone number, email address, etc. for user queries. 8) Procedure for changing privacy policy Indicate how to announce changes in the privacy policy (another consent is required if the range of the personal information that was agreed to be collected is changed). 2. Proper management of user information 3. Special notes on information collection module providers Notify apps providers regarding the items and purposes, etc. of the personal information to be acquired. 4. Special note on advertisement delivery services providers Notes on how to behave as apps providers or information collection module providers. Function and Structure of the Social Welfare and National Taxation Number System ‘My Portal’ (My Portal Management Organisation) User (Data Subject) 6.Display the access log Data-Holding Organisation 2.Ensure confirmation of the access log request is transmitted 1.Demand confirmation of the access log 5.Log into the 'My Portal' Information Coordination Infrastructure 4. Information Stored Accss Log Access Log 3.Respond to access request via access log transmission <User folder>> ※Information on the access log temporarily preserved in the user folder is deleted at the same time as logging out. 1.Demand the confirmation of the 'information about oneself 6.Log into the 'My Portal' 7.Display the 'Information about Oneself 2.Inquire into the confirmation of 'information about oneself' request 5. Information Stored 3.Transmit the inquiry confirmation request about 'information about oneself' as received and approved Information about Oneself 4.Transmit the necessary information Information about Oneself <User Folder> ※After logging out, information stored by the Data-Holding Organisation, temporarily preserved in the user folder, is deleted. 2.Transmit the application 1.Make the `One-Stop` application 4.Log into the 'My Portal' 5.The receipt of information request via `notice` is displayed on the screen 3. Information Stored 2.Acknowledge receipt of information request via `notice` 1.Acknowledge receipt of information request via `notice` 3.The application is received by the 5.申請・審査 5.申請・審査 'organisation' Administrative Officer Notice <User Folder> 6.The application process continues 7.The application is transmitted to the Data-Holding Organisation 8.The 'Holding Organisation' accepts the application
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