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Everyday Americans are being confronted with requests or demands from many sources to disclose their Social Security number.
Many States are now requiring the display of social security numbers upon drivers' licenses.
Public school officials demand that school age children have Social Security numbers before those children may be enrolled in any public school.
Some hospitals intimidate parents into applying for a Social Security number for their newborn child, by informing the new parents that without complying with this policy the child cannot be discharged.
Private parties of all kinds, from banks to employers, claim federal and state law mandates that they obtain the Social Security number of everyone with whom they conduct business.
Qualified potential employees have not been hired because they do not have, or were not willing to supply, a Social Security number.
Employees have been terminated when they refused to obtain a Social Security number.
With all these entities making such inquiries and demands, surely the law must contain a requirement that everyone must have a number?
Or, is it possible that people are acting like cattle, dutifully following the herd instinct without question, assuming that such a requirement exists as "Everyone is doing it..." and making no more thought of it?
Simply put, does federal law and regulations require every American to apply for and furnish a Social Security number upon demand, or are such purported assertions merely assumed?
The purpose of this report is to help individuals understand their rights and responsibilities under the Social Security Act, and it addresses congressional and judicial actions regarding disclosure and privacy issues associated with the Social Security number.
In order to understand one's responsibilities under the Act, let's first ascertain whether an individual is even required to have a Social Security number, by examining the policy and practice relative to the issuance and use of the Social Security number, including prohibitions, restrictions, conditions, or other qualifications on the issuance and use of the number.
The Federal Social Security Act (Pub. Law 74-271, August 14, 1935, 49 Stat. 620; as amended) is codified at 42 U.S.C. 301 et seq.
First, if there was a requirement that every American must have a Social Security number, one would expect to find such language in the act.
However, no such language appears within the act, and further there is no section therein which could remotely be considered as a mandate that every individual must have a Social Security number.
Since the statutory law fails to impose this requirement on an individual, the next question is whether the regulations promulgated pursuant to the statute imposes such a duty, but here, the regulations are no broader than the act itself, and the duty to apply for and obtain a Social Security number is found at 20 C.F.R. 422.103 which provides:
Applying for a number - (1) Form SS-5. An individual needing a social security number may apply for one by filing a signed form SS-5, "Application for A Social Security Number Card," at any social security office and submitting the required evidence.
The first mention of the Social Security number in a law or regulation is a Bureau of Internal Revenue regulation dated November 5, 1936 under which an identifying number, called an "account number", was assigned to employees covered under the Act. T.D. 4704, 1 Fed. Reg. 1741, Nov. 7, 1936; 26 C.F.R. Part 401 (1st ed., 1939). This regulation was issued pursuant to Section 807(b) of the Social Security Act of 1935 and was intended to have a directory and not mandatory effect.
For some years after its inception in 1936, there was no substantial use of the Social Security number other than being required as an identifier for those individuals receiving benefits under the unemployment compensation programs contained in the Act and administered by the States.
Most Americans by the 1940's had not been issued a number since they were not receiving these benefits, and few organizations felt the need of a numeric identifier for purposes of data processing.
Although many people today are under the impression that a Social Security number is required for more than just social security purposes, this is not the case and never has been. This impression may have arisen, in part, from the fact that in 1943, the Civil Service Commission decided that there should be a numerical identification system for all Federal employees and proposed to the bureau of the budget that the use of the Social Security number be authorized for this purpose. This led to the issuance of Executive Order 9397.
That order provides in part as follows:
WHEREAS certain Federal agencies from time to time require in the
administration of their activities a system of numerical identification of
accounts of individual persons; and;
WHEREAS it is desirable in the interest of economy and orderly administration that the Federal Government move towards the use of a
single, unduplicated numerical identification system of accounts and avoid the unnecessary establishment of additional systems;
NOW, THEREFORE, is hereby ordered as follows:
1. Hereafter any Federal department, establishment, or agency shall, whenever the head thereof finds it advisable to establish a new system of permanent account numbers pertaining to individual persons, utilize exclusively the Social Security Act account numbers.
The order directed the Social Security Board (the predecessor agency of the Social Security Administration), to provide for the assignment ofan account number to any person required by any Federal agency to have one, and to furnish the number, or the name and identifying data, pertaining to any person or account number upon request of any Federal agency using the Social Security number for a numerical identification system of accounts under the order.
The issuance of Executive Order 9397 in 1943, theoretically may have provided the basis for this change in conception of the role of the Social Security number. This interpretation was taken from the wording of theorder which speaks of the efficiency to be gained from "a single...systemof accounts..." To interpret the order as applying to all kinds of Federalagency record systems was arguably beyond the meaning of its language.
In 1946 the Social Security Administration, complying with the provisions of the Administrative Procedures Act of 1946 (Pub. Law 79-404, 60 Stat. 237), which required among other things, "uniformity, impartiality and fairness in the procedures employed by federal
administrative agencies", issued and published in the Federal Register its regulations on the issuance and use of social security numbers. 20 C.F.R. 422.1(ii) published at 11 F.R. 177A-568, September 11, 1946 provides:
(ii) Any person who wishes to file an application for an account number may do so by filing Form SS-5.
What many regard as the single most substantial impetus to use the Social Security number for purposes other than the Social Security program occurred in 1961, when the Internal Revenue Service, after discussion with the Social Security Administration, decided to use the Social Security number for taxpayer identification.
This decision was implemented by an amendment to the Internal Revenue Code (Pub. Law 87-397, 75 Stat. 828, Internal Revenue Code of 1954, Sec. 6109), that authorized the Secretary of the Treasury to request that each person making "a return, statement,
or other document" under the Internal Revenue Code to "include such identifying number as may be prescribed for securing proper identification of such person." The Secretary delegated his authority to the Commissioner of Internal Revenue, who issued a number of regulations. The combined effect of this will be examined further.
In a decision dated April 16, 1964, the Commissioner of Social Security approved the issuance of social security numbers to pupils in the
ninth grade and above, if a school requests such issuance and indicates willingness to cooperate in the effort. The Social Security Administration Claims Manual explains that this decision was made to accommodate requests from school systems "desiring to use the Social Security number for both automatic data processing and control purposes, so that the progress of pupils could be traced throughout their school lives across district,county, and state lines." The school enumeration program, however, is entirely voluntary.
In June 1965 the Commissioner of Social Security authorized the issuance of a Social Security number to every recipient of State old-age
assistance benefits who did not already have one, in order to establish a more efficient process for exchange of information between these agencies and the Social Security Administration.
In June 1965 the Civil Service Commission began to add Social Security numbers to the retirement records of their annuitants.
The Congress, in Section 137 of the Social Security Amendments of 1972 (Pub. Law 92-603, 86 Stat. 1329, 42 U.S.C. 405(c)(2)(B)(i)(II)), requires the Secretary of the Department of Health, Education and Welfare (the predecessor agency of the Department of Social and Human Services) to take affirmative measures to issue Social Security numbers "to any individual who is an applicant for or recipient of benefits under anyprogram financed in whole or in part from Federal funds including any
child on whose behalf such benefits are claimed by another person." The quoted language of this requirement appears to call for the issuance of aSocial Security number to virtually everyone in America who did not already have one, but when closely examined there is no actual languageregarding registration which stands without the issuance of benefits here.
According to our research, the legislative history continues to clearly indicate that such universal enumeration was not intended.
Under the 1972 amendments, all members of Aid for Families withDependent Children (AFDC) households, including children, are required to furnish their Social Security number in order to qualify for benefits(here are benefits again). See 42 U.S.C. 602(a)(25) (1976). Thisstatutory scheme has since been amended, although the Social Security number requirement has been retained in virtually identical form. See Deficit Reduction Act of 1984, Pub. Law 98-369, 2651(a), 98 Stat. 1147.
If they do not have a Social Security number, they must apply for one. See 45 C.F.R. 232.10(f) (1973). This regulatory requirement was upheld in Chamber v. Klein, 419 F.Supp. 569 (D.C.N.J. 1976) which ruled that requiring Social Security numbers as one condition for receiving aid (AFDC) did not violate any constitutionally protected right to privacy.
It is apparent that the number is not needed to retain or accrue any benefits, as the U.S. Supreme Court, in the renowned ruling of Helvering v. Davis, held that taxes paid to Social Security do not correspond to the benefits whatsoever.
In April 1974 it was decided that participating States could enumerate Medicaid recipients in addition to AFDC beneficiaries.
Under the Tax Reform Act of 1976 (Pub. Law 94-455, 90 Stat. 1520),states are authorized to require Social Security numbers as identifiers for state programs, including general public assistance. See 42 U.S.C. 405(c)(2)(C). This section of law also reveals that if the identification system was in place within the state program before January 1, 1975, that the requirement of the submission of the number to the State was legal, but afterwards, it was not protected under Federal law.
Since 1980, Social Security numbers are an eligibility requirement for many food stamp household members. See 7 U.S.C. 2025(e). Another clear case of a Federally subsidized program coming into compliance with the singular identification system.
This review of the Federal actions described above (which does not by any means constitute an exhaustive list) makes it clear that the Federal government itself has been in the forefront of expanding the use of the Social Security number as set forth in the Executive Order published above. But it should also be clear that the enumeration of individuals under the Social Security Act was, and still is, by plain statutory language intended to be limited to those receiving Federal entitlements.
The requirement for and the use of the Social Security number in connection with all federally funded federal and state welfare programs
enhances the program's efficiency and helps to reduce the tremendousproblems of mis-payment of benefits by the agencies involved with theadministration of these programs. See Callahan v. Woods, 736 F.2d 1269, 1274 (9th Cir. 1984).
With increasing demands being placed on individuals to furnish a Social Security number in circumstances when the use of the number is not required by Federal law or regulation, the Congress in 1974 passed the Privacy Act of 1974 (Pub. Law 93-579, 88 Stat. 1896; as amended). Section 7 of Pub. Law 93-579 provides:
(a)(1) It shall be unlawful for any Federal, State, or localgovernmental agency to deny to any individual any right, benefit, or privilege provided by law because of such individual's refusal to disclose his social security account number.
The relevance of this Act is simply that it highlights the importance of privacy interests associated with social security information. Cf.
Wolman v. United States, 501 F.Supp. 310 (D.C.D.C. 1980), remanded 675 F.2d 1341 (D.C. Cir. 1982), vacated on other grounds, 542 F.Supp. 84 (D.C.D.C. 182) (Section 7 of the Privacy Act was intended, the District Court found, to block indiscriminate governmental use of social security information as the "universal identifier.") See United States v. Two Hundred Thousand Dollars in U.S. Currency, 590 F.Supp 866 (S.D. Fla.1984).
This language used by the Court plainly explains and draws the line of limitation for the federal government to claim the need for identifying numbers from individuals to be only for its own fiscal protection and right to know and discover when it might be defrauded, or a program failing to meet its intended purpose and goal as set forth by the Acts of the Congress.
In enacting Section 7, Congress sought to curtail the expanding use of Social Security numbers by federal and local agencies, and by so doing, to eliminate the threat to individual privacy and confidentiality of information, posed by common numerical identifiers. See: S.Rep.No. 1183, 93rd Cong., 2nd. Sess., reprinted in [1974] U.S. Code Cong. & Admin. News, pp. 6916, 6944. Underlying this legislative effort was the recognition that widespread use of a standard identification number in collecting information could lead to the establishment of a national data bank or similar informational system, which could store data gathered about individuals from many sources and facilitate government surveillance of its citizens. Id. at 6944-45, 6957. It was anticipated that as the use of the Social Security number proliferated, the incentive to consolidate records and to broaden access to them by other agencies of government
would in all likelihood correspondingly increase. Id. at 6945. Thus, Congress saw a need for federal legislation to restore to the individual the option to refuse to disclose his Social Security number without repercussion, except in specifically delineated circumstances outlined in section 7(a)(2).
The plain language of the Federal Social Security Act, its legislative history, regulations, and the relevant decisional precedents,
makes it clear that there is simply not any requirement that an individual must obtain and disclose a Social Security number, unless they receive federally funded entitlements, and the disclosure of the number is required under applicable federal law. Since federal law does not require any individual to apply for and accept any federal benefits, let's now examine whether (1) federal law requires every employee to have a Social Security number in order to work, and (2) a Social Security number is required in order for an employer to meet all tax filing and reporting requirements under state and federal law.

Since the passage of the Immigration Reform and Control Act of 1986 (IRCA) which sought to prevent illegal immigrants, principally from Mexico and other Hispanic countries, from finding work in the United States, by imposing civil and criminal penalties against employers who knowingly hired such workers, there has been a movement by both Democrats and Republicans to require that every American have a national identification card - or work permit issued by a federal bureaucracy. While supporters of such a national identity card claim its use would be limited only to the control of illegal immigration, it takes little imagination to see a governmental attempt in expanding its use in the future, to deny individuals the right to earn a living by denying them a card.
For example, Congress might pass legislation allowing the Internal Revenue Service the power to deny or suspend an individual's work permit for alleged non-payment of taxes, or information of alleged importance such as whether a prospective employee had a criminal record or had an infectious disease might be required on an identity card.
Supporters of a national identity card claim that it could be little more than a "counterfeit proof" Social Security card. (This is a joke as
electronic countermeasures have become very easy to decode, copy, and apply in this electronic age.) However, in order for the Federal government to solve the problem of the phony identifications already being used to acquire Social Security cards, an "improved" Social Security card would require a huge data gathering bureau to cross-check every piece of identification. This bureau presumably would have to record each individual's birth, job changes, address changes, and death, effectively charting their every movement from the cradle to the grave.
In an effort to rewrite American immigration policy, and subsequently the effectiveness of our Bill of Rights, Representative Lamar Smith of Texas, introduced legislation designed to reduce the numbers of aliens who settle in the United States, and crack down on illegal immigration. H.R. 2202 "Immigration in the National Interest Act of 1995." One major provision of the bill requires employers to verify that job applicants are eligible to work in the United States. Employers would have to call the Federal government to check the authenticity of the applicant's Social Security number.
This was clearly a bad idea, as all we needed in America was another bureaucracy interfering with the commerce, and now a U.S. Citizen would have to wait for permission to go to work. a tragic and asinine situation to someone in this economy finding themselves so quickly unemployed and out on the street. Plainly this bill would have had the equivalent effect of the U.S. Supreme Court ignoring the centuries old standards of Justice, and ruled that the Bill of Rights only provided for a speedy trial, but says nothing of fairness, and the status quo mindset of most Jurors thinking the government always is and/or has the right in the agreed standard of impartiality.
It is unclear whether the foregoing provision of Representative Smith's legislation is designed solely for the control of immigration, or is actually an attempt, under the guise of immigration policy, to place every working American under the control of the Federal government. It should be noted however, that it is a well settled principle of American Constitutional Law still preserved in the statutory language of all Federal laws (save occupations incurring Federal excise taxes), that every member of this national community has a right to enjoy a free labor market, to have a free flow of labor for the purpose of carrying on the business in which he has chosen to embark. This right is not merely an abstract one; it is one recognized as the basis of a cause of action where there is an unlawful interference therewith.
Specifically, laborers have a right to a free and open market in which to dispose of their labor, or a right to a free access to the labor market for the purpose of maintaining or increasing the incorporeal value of their capacity to labor, despite our customary,superstitious, and religious application of the Income tax to everyone in this country. A laborer has the same right to sell his labor as any other property owner.
Labor is deemed to be property, especially within the meaning of constitutional guaranties. Thus, the right to acquire property includes
the right to acquire property by labor. Since the right to labor is protected by the Constitution and numerous guaranties of state
constitutions, one cannot be deprived of such right by arbitrary mandate of the state legislatures and/or by the Federal government when so protected.
In Patton v. Bellingham, 179 Wash. 566, 38 P.2d 364 (1937), the Washington Supreme Court reaffirmed the principle of law that labor is a right of property by declaring:
"The right to labor or earn one's livelihood in any legitimate field of industry or business is a right of property, and any unlawful or unreasonable interference with or abridgment of such right is an invasion thereof, and a restriction of the liberty of the citizen as guaranteed by the Constitution." Yee Gee v. City and County of San Francisco, 235 Fed.
757, 759.
Any national legislation establishing a Federal Work Permit or National Identify Card, utilizing a Social Security number as a condition
for obtaining employment in the United States, seeks only to deprive Americans of a fundamental freedom-the right to earn a living. Since the right to labor, and its protection from unlawful interference, is a constitutional, as well as a common-law right, and is to this day still statutorily unmolested except our perception of the law and our actions in pursuance to instructions on government forms allegedly in agreement with and explaining the law, the U.S. Citizen still has a natural right to the fruits of his own industry regardless of governmental demands.
Despite Representative Smith's efforts, the Congress did concede to the limitations of its power in the enactment of the the Immigration
Reform and Control Act of 1986 (IRCA) requiring every employer to verify an employee's Social Security number before commencing work.
The fact is that the U.S. Congress plainly restricts the authority of the Attorney General of the United States of America, the U.S. Department of Justice, or any agency of the federal government from construing that the IRCA is to authorize the issuance of a National Identification Card for U.S. Citizens under the provisions of the Act Codified in Title 8 1324a.
This is further pointed out by the Congress in Title 8 1324b, which plainly state in (a)(3) that U.S. Citizens are deemed to be defined as
"protected individuals" under the Act, and under (a)(6) and its regulations, no employer can demand ANY "protected individual to provide ANY specific documents to evidence their work eligibility.
So what specific documents is the law speaking of? They are listed in 1324a(b), and include the Social Security Number Card, Driver's License, Birth Certificate, State I.D. Card, Passport. Foreign Passport, Certificate of U.S. Citizenship... The clearest reason why it is that the Congress cannot require a U.S. employer to require such documents from a U.S. Citizen is clear, and why any U.S.Employer doing so is subject to review before an Administrative Law Judge in the Office of Chief Administrative Hearing Officer of the U.S. Department of Justice under prosecution by the Special Counsel for Immigration Review, Civil Rights Division. is because there is no law which requires a U.S. Citizen to obtain any of these documents just for the purpose of contracting for his labor as an employee.
So, to date, neither the State nor Federal governments have sought to enact legislation impeding or regulating this right from time immemorial.
In fact, it is now protected under the IRCA (Title 8 1324b). Still it is not surprising to find that the Department of Justice refuses to Administratively adjudicate any prima facie cases of this type of abuse by employers. One only needs to wonder why.
The fact of the U.S. Supreme Court, and the history of our nation of positive law, plainly laying the foundational rule of law, and that the
words in the laws mean what they say, (see LAW 101) someone within the government might mistakenly construe the IRCA to intend such authority to be given and destroy rights and the principles of freedom and justice upon which the Constitution rests.

Today it is common for an employer to require a Social Security number from an employee, under the mistaken belief that unless the employee had a Social Security number, the employer would be in violation of Internal Revenue Regulations and subject to numerous penalties. The employee isnotified that, unless they obtain a Social Security number, they will be terminated.
However, the Internal Revenue Code and regulations do not contain an absolute requirement that an employer must provide an employee's Social Security number to the Internal Revenue Service. Code Section 6109(a)(3) provides:
Any person required under the authority of this title to make a return, statement or other document with respect to another person, shall request from such other person, and shall include in any return statement, or document, such identifying number as may be prescribed for securing proper identification of such other person.
The IRS regulation interpreting Section 6109 provides:
If he does not know the taxpayer identifying number of the other person, he shall request such number of the other person. A request should state that the identifying number is required to be furnished under the authority of law. When the person filing the return, statement, or other document does not know the number of the other person, and has complied with the request provision of this paragraph, he shall sign an affidavit on the transmittal document forwarding such returns, statement, or other documents to the Internal Revenue Service so stating. 26 C.F.R. 301.6109-1(c).
This law was used in the case of the EEOC v. Information Systems Consulting (who terminated a Mr. Hansen for not having a Social Security Number). The company believed the IRS employee they conversed with over the telephone, to have told them that they could not have an employee who did not have an SSN, as opposed to the legal and statutory fact that they cannot have a person working for them, that would meet the definition of "employee" under 3121(d), without having a social security number.
Whether it was a communications error, or it was an intentional discharge in fear of the IRS (as the IRS is always vague in delineating limitations of the law in such instances), was not determined, as the case was settled out of court when the government used 26 CFR 301.6109-1(c) to show the employer his remedy at law to protect the rights of the Citizen, and showed conclusively that U.S. Citizens (not just the Amish seeking specific exclusion under the law) do not have to have a social security number to live and work in the United States of America. (NOT YET!)
It is still the law that the applicable Federal statute and regulation places a duty on the employer to "request" a taxpayer identifying number from the employee. If any return, statement, or other document must be furnished to the Internal Revenue Service and the employer has been unable to obtain an identifying number from the employee, after requesting the number, then the employer need only include on the transmittal document forwarding such returns, statements, or other documents, an affidavit stating that the request for the number was made.
As pointed out by the Federal Government in the EEOC v. ISC case, until December, 1989, 26 U.S.C. 6676 (1989), set forth the penalties for failing to supply the Internal Revenue Service with the identifying number. This section states that a .00 penalty will be imposed for failure of an employer to provide an identifying number on any document filed with the Internal Revenue Service unless it is shown that the failure is due to reasonable cause and not willful neglect. The regulation interpreting the statute provides:
Under Section 301.6109-1(c) a payer is required to request the identifying number of the payee. If after such a request has been made,
the payee does not furnish the payer with his identifying number, the penalty will not be assessed against the payer. 26 C.F.R.
As again pointed out in the Government's prosecution of the wayward employer, the Omnibus Budget Restoration Act of 1983 (Pub. Law 101-239, Title VII, Section 7711(b)(1)), repealed Section 6676 of the Internal Revenue Code, effective for statements or documents filed after December 31, 1989. Since December 31, 1989, Code Section 6723 has governed the failure to comply with information reporting requirements. Section 6723 provides that a penalty of .00 shall be assessed for each failure to comply with a reporting requirement. However, 26 U.S.C. 6724, provides for a waiver of any penalties assessed under the code upon a showing of reasonable cause. Section 6724(a) provides:
No penalty shall be imposed under this part with respect to any failure if it is shown that such failure is due to reasonable cause and
not willful neglect. 26 U.S.C. 6724(a).
Therefore, the Code and regulations mandate a payor only to request the identifying number of the employee or payee. If after such a request has been made, the payee does not furnish the payor with his identifying number, the penalty will not be assessed against the payor, upon the filing of an affidavit with the Internal Revenue Service stating that a request for the payee's identifying number was made.
The foundations of American law and the statutory limitations of the letter of the law plainly left poor, unfortunate ISC in the position of
going down in history as the quintessential example of a Modern American employer; ignorant of the law, dependent upon custom, bordering on religious belief, due to poor knowledge and research by their legal staff and/or counsel, following the spoken words of unidentified government employees as legal advice, and facing the judge without any support or documentation from that government agency.
The American people are properly jealous of their personal privacy. They resent the need to account for their actions and their lives to the government. For example, in 1990 over 45 percent of the American households did not initially return their census forms on time, feeling, as one Chicago woman summed it up, that "it's too much personal information to give out to a government agency." Every day, demands are being placed on individuals to furnish a Social Security number in circumstances where use of the number is not required by the Federal government for Federal program purposes, and those who join the privacy rebellion find themselves unable to obtain utility and cable services, and even open a bank account (despite the remedy provided for in 31 CFR 103.34). The Social Security number is DEMANDED, not requested (as the law does allow in cases not authorized prior to 1975), of individuals by State motor vehicle departments, public utility companies, landlords, credit grantors, schools, colleges, employers, and innumerable other organizations.
What the Congress stopped the government from doing within its Executive branch alone, is now implemented through the Public Private partnership of the Social Security Administration, the U.S. Department of the Treasury, the Banking establishment, Equifax, Trans Union, TRW, and the U.S. Supreme Court (by their refusal to hear and rule in favor of Citizens rights and the Rule of law in the Appeal of (Ms. Carie Marie) Martin v. the Commonwealth of Pennsylvania).
If the Social Security number is to be stopped from becoming a National Identity Card, the individual must exercise and use his or her option to not disclose his number unless required to do so by the Federal government for legitimate Federal program purposes, under legal authority, some of which referred to in this article. The American people must be educated to the fact that there is no legal authority compelling enumeration into the so-called Social Security scheme. As examined in this report, existing Federal law offers clear statutory authority for this refusal.
Only when the People make this an issue in our Society will the U.S. Supreme Court be forced to hear cases such as Ms. Martin's and return us to a Society of individual human beings, as opposed to units in a numbered database, and we will be better able to defeat the impositions on our privacy and the implementation of new laws and law enforcement officials swarming upon the American People to hinder our elementary and essential freedoms to live as independent and individually prosperous beings.
Our thanks to the National Organization for Non-Enumeration for the original publication of most of this information in November 1995
Re-edited and updated January 1998 by a Taxgate researcher.

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