The Insurrection Affidavits Don’t Show Where the Insurrection Was Organized

The normally very rigorous Thomas Brewster has a piece purporting to fact-check Sheryl Sandberg’s claim, made days after the January 6 insurrection, that the insurrection wasn’t organized on Facebook.

“I think these events were largely organized on platforms that don’t have our abilities to stop hate and don’t have our standards and don’t have our transparency,” said Sheryl Sandberg, Facebook chief operating officer, shortly after the Capitol Hill riots on January 6.

The piece has led both bad faith and good faith actors to grasp on the story to claim that Facebook is responsible for the violence.

Brewster purports to measure that by seeing how many mentions appear in the charging documents for the 223 people included on GWU’s list of arrestees.

But a few paragraphs later, Brewster admits he’s not measuring on what platform the riot was organized, but instead which was most popular among rioters.

Whilst the data doesn’t show definitively what app was the most popular amongst rioters, it does strongly indicate Facebook was rioters’ the preferred platform.

Even that is not proven (though it may well prove to be true), but obviously which platform is most used among rioters to boast about the riot is a very different question than on which platform (if any) the insurrection was organized.

Here’s why:

  • At least half the existing affidavits are a measure of which riot attendees were most likely to be outed and how
  • Expect parallel construction
  • There are a lot of dangerous rioters who’ve not yet been charged
  • The currently accused in no way represent all the known people who might be considered organizers of the riot or the larger operation
  • The existing affidavits are no measure of what platforms actual organizers used to organize

At least half the existing affidavits are a measure of which riot attendees were most likely to be outed and how

The police made just a handful of arrests on January 6, with the biggest component being curfew violators who did not even provably enter the Capitol (and so those non-federal cases should not be included in the analysis of rioters, as Brewster did).

In the four and a half weeks since the riot, the cops have engaged in a kind of triage, arresting those whom they could easily identify and then, over time, prioritizing those who — from video evidence of the insurrection — appeared to have committed more dangerous crimes. That means in the days after the insurrection, arrests largely focused on the people who appeared the most outlandishly stupid in videos, those whose own social networks of family, work acquaintances, and high school friends disapproved of their participation in the riot and so called the FBI with a tip, or those who identified themselves in media interviews (which often led to family, work acquaintances, and high school friends to then alert the FBI).

To understand the affidavits, it’s important to realize that any person who entered the Capitol without a legitimate purpose on January 6 (that includes a number of people who videoed the event but had no media credentials) were committing two crimes, both tied to it being the Capitol. So all the FBI would need to charge someone is to prove that they entered the building.

About half the current arrestees were charged with just these trespassing crimes, yet many of these people were among the first arrested. These people are in no way the organizers of the riot, and many of them are just Trump supporters who were caught up in the crowd. Some even credibly described trying to de-escalate the situation (including one such guy who got arrested because he had the misfortunate to show up in videos of the guy who stole Pelosi’s lectern).

The measure of how these people were arrested is quite often a measure of the fact that they shared their memories of the day or were caught by others who did. And to the extent that this happened on Facebook, it likely happened because Facebook is the platform where people have their broadest social networks, making it more likely that a lot of people who don’t sympathize with the riot would have witnessed social media content talking about it. Facebook is where ardent Trump supporters still share networks with people who vehemently oppose him.

In other words, in this initial arrest push, the people who bragged on Facebook were among the most likely to be arrested precisely because the network includes a broader range of viewpoints. It’s a measure of reach — and the political diversity of that reach — and not a measure of the centrality of the platform to the planning or violence.

Expect parallel construction

As noted, in the weeks since the insurrection, some agents at the FBI have obviously shifted to a reverse approach: rather than arresting those against whom tips came in from aggrieved ex-wives and people who were owed money, the FBI started to identify which rioters were the most dangerous and prioritize figuring out who they were.

One type of more dangerous rioter would be those with institutional ties that lead the FBI to believe there might be something more going on. But these are just arrest affidavits, which the FBI is acutely aware will be publicly scrutinized. As every single one of them say, they don’t reflect the totality that an Agent might know about the person. And in those cases, we should expect the FBI to parallel construct what they know about people and how they came to know it.

Social media is a wonderful way to do that.

And it does seem that the FBI relied on social media to establish probable cause for such people. Take the Lebanese-born woman who started engaging in the 3% community in November, which the FBI cites to Facebook. Or consider how the FBI pretends they did not know who Nick DeCarlo was until he showed up in Nick Ochs’ Twitter feed. Both rely on social media (in the latter case, one piece of evidence is something researchers found on Telegram and posted on Twitter, and so should be chalked up in the “uses Telegram” column).

But measuring how the FBI parallel constructed other knowledge is not a measure of what social media platforms people primarily use.

There are a lot of potentially dangerous rioters who’ve not yet been charged

As noted, one way the FBI shifted focus after the initial arrests of people identified by their disapproving family members was by identifying people involved in assaults — first of officers (designated by AFO), and then the media (designated by AOM) — and trying to identify them, in part through the use of Wanted posters (BOLO).

To date, the FBI has released 223 BOLOs, of which 40 precede the shift of focus to those involved in assault (and so include people who caught attention for another reason, such as the use of a Confederate or Nazi imagery). The FBI has arrested around 35 people identified in BOLOs, thus leaving around 190 people that the FBI has identified to be of particular interest based off video images, that they have not yet arrested.

For what it’s worth, I suspect that the FBI has identified a goodly number of these people, and may even have sealed complaints against some of them but is holding off on an arrest to gather more evidence. That is, they can arrest them now, but would prefer not to until they shore up their case. In a number of cases where people were identified off of BOLOs, the people turned themselves into the FBI but denied any physical contact was anything but a love tap (here’s one example, but there are others), potentially making it harder to prosecute for the violence.

If and when these people are identified, they may well prove to have used Facebook. But thus far, this group of people has shown better operational security and (unsurprisingly) a greater likelihood to flee or to destroy evidence.

But whatever their Facebook use, when counting the numbers of the 800 people who committed a trespass crime on January 6 by entering the Capitol, of which 200 have been arrested, it’s worth noting that almost another 200 — some of the greatest concern — have not been provably identified by bragging Facebook posts yet.

The currently accused in no way represent all the known people who might be considered organizers of the riot or the larger operation

Thus far, the government has filed the bare outlines of conspiracy charges against both the Oath Keepers (who spoke of a plan they had trained for) and the Proud Boys (who moved in obviously coordinated fashion communicating via radio on January 6). But those conspiracy charges currently include just three and two people, respectively (with a sub-conspiracy charged against two more Proud Boys).

According to claims quoted in charging documents, there were anywhere from 30 to 65 Oath Keepers involved in the riot (including a busload from North Carolina). There are at least three other key Proud Boys that have not been arrested for the riot (Enrique Tarrio, of course, was arrested days earlier for a different racist attack), and about half of those that have were charged with just the trespassing crimes.

In general, these people are not currently identified in BOLO posters.

In other words, this is a set of people — perhaps another 40 on top of the 190 outstanding BOLO figures — that the FBI likely considers key suspects.

And that’s just the organizers of the riot. That doesn’t include James Sullivan, who appears to have been in communication — via text — with Rudy Giuliani.  It doesn’t include people like Ali Alexander and Rudy and possibly Roger Stone who would tie the riot to the larger effort to delay the vote (which is the object of both the Oath Keeper and Proud Boys conspiracy). We know from Stone’s prosecution, at least, that he was de-platformed long ago and learned to use encrypted apps by August 2016.

In any case, before you can make claims about what platforms were used to organize the insurrection, you first need to identify the universe of people believed to have organized it. Right now, perhaps as few as 20 of the 200 people who’ve been arrested should be considered leaders of it, and there are probably at least another 40 who might be considered organizers of the riot itself who have not been arrested yet.

The existing affidavits are no measure of what platforms actual organizers used to organize

To be sure, both of the groups identified in conspiracies (and Three Percenters) made use of Facebook. As Brewster cited, accused Oath Keeper conspirator Thomas Caldwell posted updates to Facebook during the siege, and the co-conspirators did use Facebook to communicate both publicly and privately before the event. Among those referencing the Proud Boys in affidavits, Andrew Ryan Bennett uploaded video to Facebook,  Gabriel Garcia uploaded video to Facebook, and Daniel Goodwin used Instagram and Twitter. As noted above, Nick Ochs had a campaign Twitter account.

But some of the more substantive public communications from both groups, including important communications from before the riot, was posted on Parler. And both groups used other means — Zello for the Oath Keepers and radios for the Proud Boys — to communicate operationally during the day.

With the Proud Boys, in particular, Facebook and Twitter have long tried to exclude them from the platform, both because their speech violated platform guidelines but also because after expulsion the group tried to bypass that expulsion.

Importantly, aside from some quotations from Jessica Watkins’ Zello account and those Facebook messages, the FBI hasn’t shown what it has of operational communications between these groups, and it’s unlikely to do so, either, until trial. The FBI is not going to share how much it knows (if anything) about the operational contacts of these groups until it has to. Which makes any conclusions drawn from what it is willing to show of questionable validity.

Don’t get me wrong: I’m happy to argue that Sheryl Sandberg is one of a number of Facebook executives who should be ousted. I agree that Facebook has fostered right wing violence, not least with the settings of its algorithms (which is the opposite of what Glenn Greenwald wants the Facebook problem to be). Because it has such wide breadth, it is a platform where people not already radicalized might get swept up in disinformation.

But I know of little valid evidence yet about Facebook’s role in organizing the insurrection, nor is there likely to be conclusive evidence for some time yet.

Update: Changed language to describe Tarrio’s alleged vandalism of a traditionally black church to make it clear he is not accused of assaulting another person.

42 replies
  1. Silly but True says:

    I take one issue with this: “…(that includes a number of people who videoed the event but had no media credentials)…”

    Certainly a media credential is some elevated indication of intent, but it’s not the end all.m and this is dangerous territory: not all journalists are credentialed. Additionally, America is not a “monarchy” with any special class of citizen who has different fundamental rights than others. If CNN or Reuters or OANN is walking around inside Capitol Building on Jan. 6, then they are trespassing, or breaking curfew, et. al. too. However, I’m sympathetic to DoJ’s interpretation that “Capitol protest tourists” — people who wandered in and did nothing else inside except wander or take pictures like some of the credentialed journalists should not be prosecuted. This would set a horrible precedent for future social or political protests.

    • emptywheel says:

      There is a really formal process for credentialing in Congress (I know bc I failed the one time I applied — the key sticking point is Congress works hard to prevent people coming in as lobbyists). There were a great many reporters in the Capitol as credentialed reporters, covering the vote count.

      I agree that the precedent for someone genuinely covering the riots is bad. All the cases I’ve seen, though, are edge cases where the “reporter” is also clearly a participant. But the litigation on this will be fierce.

      • Silly but True says:

        Thanks for the insight, Marcy.

        Also, I had not even considered the angle that Capitol wasn’t completely closed that day to non-Congressional staff such as media covering the counting.

        Imagine being a guest of a Congressman or on a school field trip at the Capitol that day?

  2. DoctorCorey says:

    It might be useful to split the insurrectionists into 2 groups:

    Group 1: riotous insurrectionists. These are casuals who practice little if any opsec. To the extent they planned to be storm the Capitol, you’ll find their planning on the same social media they used to talk about it live.

    Group 2: intentional insurrectionists. They came revolting (pun intended). To the extent that they are idiots, they’ll have used Parler, another semi-closed social media group, or other electronic communications. Seriously, these dumbasses will have likely used trackable coms because they didn’t think it through.

    • subtropolis says:

      That’s certainly worth noting. It’s a platform dedicated to the crazy, unhinged universe that the right has constructed. Being a Mercer operation, though, it’s not really surprising.

    • Chris.EL says:

      Please don’t bite — isn’t it now coming out that (at Parler’s inception) Trump was willing to participate, but for *a price* (bribe to him).

      Ukraine is also in the news; gee it’s part of Russia?

      Saw a nice photo of Vindman and his twin brother — a commeration of how their lives are going now.
      @ASFleischman has articulated something that’s been bothering me — and thank you!!!

      Could this be an issue in impeachment arguments?? It could be a little beyond the comprehension of some Trump advocates in Congress…
      From Twitter:

      “Andrew Fleischman
      “If former Presidents are given secret service protection, a budget for an office, and federally granted furnishing, aren’t they civil officers rather than private citizens?” …

      [Image of quoted citation text]

      • bmaz says:

        Lol, are you and Andrew seriously saying that ALL government retirees are STILL “civil officers”?? Really? You are cherry picking junk off the internet and falsely shaping it into your fever dreams. That is not a good thing, especially here.

        • Stacey says:

          I wouldn’t take it as a general statement that ALL retired employees are still civil officers, but one that’s getting a salary, a staff, SS protection, an official office as the Former President, etc. is HARDLY identical to a private citizen like you or me who may have retired from a civil service job having committed whatever crimes on the way out the door.

          Part of the bang for the buck of impeaching him is removing those benefits from him. I think once you sever him and our countries financial resources that we are currently obligated to pay him for the rest of his miserable little life, THEN he can rightly call himself a private citizen. But he’s in a half-way land right now.

          Hell, given that I doubt we’ll get enough Rs to vote to convict him, if someone wanted to offer up his foregoing all of the financial gain he’s ‘entitled’ to as an ex-president as a ‘plea bargain’ as it were (I KNOW that’s not a thing in this case, I’m borrowing the concept for the sake of argument) I’d almost entertain that option. And then convict him in a less political legal setting for anything possible after that.

          At the end of the day, it burns my bacon that we have to give this asshat another dime from our coffers after what he’s done to this country, and I’d entertain any argument that gets us closer to not doing that.

  3. Chris.EL says:

    IANAL, can’t shake this theory on Former President Trump’s impeachment trial scheduled for today!

    1. Read that Trump’s lawyers did not present any affirmative defenses.

    2. Trump will not be present, will not testify, constitutes a non-appearance.

    3. No affirmative defense, no appearance = default plea of no contest; no outright admission of guilt, but Court (=Senate) can determine the punishment.

    4. From Google: “Pleading no contest or nolo contendere means you admit no guilt for the crime, but the court can determine the punishment. (The judge will hold a conversation with the defendant to ensure he understands the plea and the possible punishment.)”

    5. Go immediately to enter judgement against Trump — NO voting needed — and vote to exclude Trump from being eligible for public office and disallow funding for Post presidency activities.

    Remove Secret Service protection: Trump has wasted more than enough taxpayer funds!!!

      • Montana Voter says:

        At this point, since no organizational rules have been finalized, no one can determine what will or will not be in play in the actual impeachment trial. Unless included in the operational rules, no procedural or other rules will be in effect. Senator Leahy might have incredible leeway as the presiding officer or he may be hamstrung by difficult to unworkable rules agreed to in order to move the process forward.

        • bmaz says:

          They were agreed to over three days ago. Irrespective of that, the impeachment was certified by the House and delivered to the Senate under an existing set of rules. You are full of it.

        • Montana Voter says:

          So, if the impeachment was sent over under existing rules, why were they supposedly “agreed to” three days ago? How about a link to them with a date of agreement ? You are the one who is full of it on this one.

        • bmaz says:

          Listen, I understand you are excited and do not know law for squat (other than your once, and apparently bogus, claim as to “years as a prosecutor”, but here are the Senate Rules on Impeachment. Once they have been invoked by the House, exactly what basis can you cite, given the inherent concepts of fundamental fairness and due process, that it is fair to materially change them mid-course after impeachment is not just invoked but response made? I’ll be waiting….

    • earlofhuntingdon says:

      Expand your reading list. If you read twtr, add @BadLegalTakes, because bmaz is being polite: what you’re reading is not correct.

    • P J Evans says:

      He wasn’t present at his first impeachment, so that one is an immediate failure.
      And they MUST vote. It’s not optional.

      • Chris.EL says:

        Is it within the purview of Senators and/or members of Congress to make a summary judgment, a summary determination that the approach of bringing an impeachment action is *unconstitutional* ?

        That seems like a determination that should come from a different branch of government.
        This is so frustrating!! All in all Trump is prancing about, handing out $50 bills to folks in the lobby at Mar-a-Lago (with what looks like Secret Service women agents standing about — only women who would wear those *horrible* looking matching dark blue jacket and pants with a white blouse) and using taxpayer funds to pay for the Office of the Former President!!!

        How will he ever be held accountable?? These evasions only serve to motivate Trump to set his coup sights higher.

      • Chris.EL says:

        Okay, my bad — just have to sit back, hold breath and wait for another Trump-related disaster to unfold.

        When will it end?

        The very excellent Steve Vladeck published this via NBC — so it is made clear — again — I’m mistaken; apologies.

        “Trump’s Senate impeachment trial is a referendum on voters’ constitutional responsibility
        We, the people, can and should hold our elected representatives accountable for not taking the Constitution seriously. ”

  4. BobCon says:

    Facebook’s statement follows the classic PR strategy of staking out three or four points of a polyhedron and letting the reader assume they describe a triangle or square.

    It’s awfully cynical of Sandberg (and by extension Zuckerberg, Clegg, Kaplan et al), because Facebook has the capacity to categorize and track the actions of the players involved and know who their fronts are. Odds are they have been scraping gigantic amounts of data from Parler all along and other more obscure outlets, and integrating it into their own data sets. That’s a big part of their business model.

    They know how the organizers integrated Facebook into their organizing strategy and for which specific purposes they were putting Facebook to use. But they’ll pretend their knowledge is only two dimensional.

    • stacey says:

      Yeah, I thought Sandberg’s comments were atrocious, too!

      So NOW she’s claiming Facebook is really the state of the art for responsible moderation of social media–AFTER the insurrection users planned at least in large part on their platform. But all of those times when Congress tried to get them to take ANY responsibility for their poor moderation performance and she’s all shrugs about their ability to rein this in.

      “Go fast and break stuff” is a really poor predecessor to “we’re the most responsible kids in this sandbox” after having seen multiple bad examples of poor outcomes from their proudly going really fast and breaking stuff.

  5. OldTulsaDude says:

    I think it is a mistake to treat any of the insurrectionists as innocent tourists caught up in the heat of the moment. These were Trump supporters. Anyone who has witnessed one of his rallies understands that there is no room in their worldview for compromise or niceties.

    My state allows the charge of murder to be applied to all individuals who were involved in a felony such as robbing a convenience store if someone is killed during the crime. There is still a dead capitol policeman whose killer is walking free. I don’t know if federal law allows it, but until his killer is brought to justice it might help to get tongues wagging with a similar charge?

    • bmaz says:

      Um, people are still presumed innocent of crimes until proven guilty, and state felony murder law has very little in common with felony murder in federal Cours under the USC. It is not good to conflate the two, although there is limited use of the concept in federal court.

      • Chris.EL says:

        … thinking precisely of bmaz and his above statement when I read this!

        Quoting: … ” [A]ny inspector … or other officer or employee of the United States … who shall receive … any gift, money, or other thing of value … shall be deemed guilty of a felony …” …

        From [link – image]×900

        I thought the “shall be deemed guilty of a felony …” was interesting

  6. Troutwaxer says:

    You might want to make a correction. Tarrio was not arrested for an assault, but for destruction of property during the Black Lives Matter protests. During the arrest, he was discovered to have high-capacity magazines which are illegal and was charged for those. Per CNN:

    “He was charged with Destruction of Property related to an offense that occurred on Saturday, December 12, 2020 in the 900 block of 11th Street, Northwest,” Hickman said. “At the time of his arrest, he was found to be in possession of two high capacity firearm magazines. He was additionally charged with Possession of High Capacity Feeding Device.”

    • Montana Voter says:

      As an established informer, he was in all likelihood arrested as a device to insulate him from participating in the seditious behavior by his cohorts while being able to maintain his status with the Proud Boys and still be of some use to the feds. Too bad he got outed so quickly. But I’m sure there will be other “patriots” willing to roll over on their buddies to save their own skins.

    • emptywheel says:

      Thanks. I did.
      I wanted to emphasize that it was an attack (which I’ve now used) but agree that I should not have used “assault.”

  7. Will Pollock says:

    setting aside whether or not Brewster got out over his skis that Sheryl Sandberg quote is quintessential Facebook gaslighting (and points my spidey sense back in the direction of FB groups)

  8. cavenewt says:

    It does seem odd that what Dr. EW describes as a “normally very rigorous” journalist would posit such an illogical theory, by counting the number of mentions in charging documents. If you think about it, it’s perfectly obvious that it’s a ludicrous idea, especially at such an early stage in the investigations. I’m surprised the phrase “low hanging fruit” doesn’t show up more often. I don’t feel like climbing the paywall to read the article, but can only conclude it’s clickbait.

  9. Vinniegambone says:

    If only we could hear the conversations/exchanges/instructions delivered via walkie talkie bandwidths. Marcy commented in earlier post as to need for investigations to establish what level of command and control centers there might have been. What number of those charged wore ear pieces ? Seemed there were insurgents assuming roles directing crowd movements, and or, serving role as chant starters, as in ” Hang Mike Pence. “. Was there a man behind curtain exhorting particular chants at particular times? Was Alex Jones ( think it was him ) following field commands when he got on the Bullhorn telling people to go around the other side of the Capitol because, “that’s where Trump will be.” Can we pinpoint and connect where people with earpieces were with what the action around them was at particular moments. The dumbasses that took the wrong turns away from Senate chamber while pursuing Officer Goodman apparently didn’t rate earpieces. Talk about flooding the zone with shit, where was Bannon on 7/6 ?). If there was a Maestro, who and where was he? Who among those charged had earpieces, walkie talkies, and who didn’t? If they cased the joint on tours day before was there a diagrams distributed , battle ground board layout. For sure there was timetable that started at one PM. Highly doubtful Stone could stand to be uninformed minute by minute as things unfolded. All the PBs guarding jim at the Willard day before all had radios. Surely he wanted details of what was going on. Certain people received orders at particular moments to exhort certain action, certain chants. Stadium waves have to start somewhere. Where was the Publix benefactor watching the action from ? Did they have pigs in a blanket in the VIP viewing stand ? Did Don jr get a earpiece ? Did Miller ?

  10. MB says:

    And, pray tell, what exactly does GG want the FB “problem” to be (relative to algorithms that encourage right wing violence)? I’m having difficulty discerning what’s meant here…

  11. Chris.EL says:

    This is a little off topic — the proofreader apparently missed it when the copy was given to the stone mason / stone cutter …

    … “AllowedHatToBelieve Retweeted
    “Andrew Fleischman
    Georgia just took down a Confederate monument, built in 1993, with a “Winston Churchill” quote about the importance of heritage.

    But as
    points out, he never said this. It’s just some old Confederate copypasta slabbed onto granite.”

    [Image link]:

    What I LOVE is the classic *mistake* of indicating the word “IT’S” when the correct word should be “ITS” — ETCHED BY A STONE CUTTER IN GRANITE!!!

    Lest we forget .. give me a break … so glad I wasn’t born in the south.
    — end rant —

  12. Christopher Blanchard says:

    A question: The Capitol Plaza was some kind of restricted space on January 6th. Does that mean those people outside, who did not get into the Capitol, are liable to some kind of criminal (or other) penalty?

    From the confused and variable stuff I have read there were seven or eight hundred people in the building and maybe four thousand outside, a number I don’t know who went out of permit bounds away from the rally, and maybe thirty or forty thousand at the legitimate protest, with Trump speaking. If that four thousand, or even the permit breakers, face penalties are there more ways into their organisation or membership which haven’t (on public notice) been exploited.

    • Eureka says:

      That’s an interesting question and I suspect it will come up in later conspiracy-related charges, and it may depend on what people were doing while on the grounds. [Separately, ISTR news reports of protesters in other jurisdictions being arrested for being in the “wrong” place, or treated like they could not remain in said “wrong” place, i.e. removed/herded away by force.]

      Two Virginia men who are charged with elections interference (initially arrested on weapons charges) for driving to Philadelphia to disrupt the vote counting (“Qanon Hummer” guys) were also at the Capitol grounds, said to be in those restricted areas (but not known to have been inside the building). Philadelphia prosecutors tried to get their bail revoked on the prior case given their presence/roles at the Capitol (bail was instead increased and terms modified; they were returned to custody at that time).

      These guys — Joshua Macias, co-founder of Vets for Trump, and Antonio Lamotta — are associated with VA state Senator Amanda Chase who was later censured for her role around Capitol events; she, Macias, and others were also Facebook livestreaming with OK leader Stewart Rhodes on 1/5, and LaMotta is seen leaving the Capitol area with a group who CNN identified as OKs.

      MAGA Fanatics Antonio Lamotta and Joshua Macias Busted in Philly Scheme Joined Capitol Riot, Prosecutors Say

      [DB links CNN claim and video; DB links prior DB piece which notes Rhodes’ pre-election 11/3 Infowars appearance threatening to deploy members of his group to polling places]

      Va. men arrested near Pa. Convention Center during November vote-counting are jailed again for attending Capitol riot

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