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MCG17A11 S.L.C.

S. ll
115TH CONGRESS
1ST SESSION

To enhance transparency and accountability for online political advertisements


by requiring those who purchase and publish such ads to disclose infor-
mation about the advertisements to the public, and for other purposes.

IN THE SENATE OF THE UNITED STATES


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Ms. KLOBUCHAR (for herself, Mr. WARNER, and Mr. MCCAIN) introduced the
following bill; which was read twice and referred to the Committee on
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A BILL
To enhance transparency and accountability for online polit-
ical advertisements by requiring those who purchase and
publish such ads to disclose information about the adver-
tisements to the public, and for other purposes.

1 Be it enacted by the Senate and House of Representa-


2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the Honest Ads Act.


5 SEC. 2. PURPOSE.

6 The purpose of this Act is to enhance the integrity


7 of American democracy and national security by improving
8 disclosure requirements for online political advertisements
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1 in order to uphold the United States Supreme Courts
2 well-established standard that the electorate bears the
3 right to be fully informed.
4 SEC. 3. FINDINGS.

5 Congress makes the following findings:


6 (1) On January 6, 2017, the Office of the Di-
7 rector of National Intelligence published a report ti-
8 tled Assessing Russian Activities and Intentions in
9 Recent U.S. Elections, noting that Russian Presi-
10 dent Vladimir Putin ordered an influence campaign
11 in 2016 aimed at the US presidential election . . ..
12 Moscows influence campaign followed a Russian
13 messaging strategy that blends covert intelligence
14 operationsuch as cyber activitywith overt efforts
15 by Russian Government agencies, state-funded
16 media, third-party intermediaries, and paid social
17 media users or trolls.
18 (2) On November 24, 2016, the Washington
19 Post reported findings from 2 teams of independent
20 researchers that concluded Russians exploited
21 American-made technology platforms to attack U.S.
22 democracy at a particularly vulnerable moment . . .
23 as part of a broadly effective strategy of sowing dis-
24 trust in U.S. democracy and its leaders..
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1 (3) Findings from a 2017 study on the manipu-
2 lation of public opinion through social media con-
3 ducted by the Computational Propaganda Research
4 Project at the Oxford Internet Institute found that
5 the Kremlin is using pro-Russian bots to manipulate
6 public discourse to a highly targeted audience. With
7 a sample of nearly 1,300,000 tweets, researchers
8 found that in the 2016 elections 3 decisive states,
9 propaganda constituted 40 percent of the sampled
10 election-related tweets that went to Pennsylvanians,
11 34 percent to Michigan voters, and 30 percent to
12 those in Wisconsin. In other swing states, the figure
13 reached 42 percent in Missouri, 41 percent in Flor-
14 ida, 40 percent in North Carolina, 38 percent in
15 Colorado, and 35 percent in Ohio.
16 (4) On September 6, 2017, the nations largest
17 social media platform disclosed that between June
18 2015 and May 2017, Russian entities purchased
19 $100,000 in political advertisements, publishing
20 roughly 3,000 ads linked to fake accounts associated
21 with the Internet Research Agency, a pro-Kremlin
22 organization. According to the company, the ads
23 purchased focused on amplifying divisive social and
24 political messages . . ..
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1 (5) In 2002, the Bipartisan Campaign Reform
2 Act became law, establishing disclosure requirements
3 for political advertisements distributed from a tele-
4 vision or radio broadcast station or provider of cable
5 or satellite television. In 2003, the Supreme Court
6 upheld regulations on electioneering communications
7 established under the Act, noting that such require-
8 ments provide the electorate with information and
9 insure that the voters are fully informed about the
10 person or group who is speaking..
11 (6) According to a study from Borrell Associ-
12 ates, in 2016, $1,415,000,000 was spent on online
13 advertising, more than quadruple the amount in
14 2012.
15 (7) The reach of a few large Internet plat-
16 formslarger than any broadcast, satellite, or cable
17 providerhas greatly facilitated the scope and effec-
18 tiveness of disinformation campaigns. For instance,
19 the largest platform has over 210,000,000 Ameri-
20 cans usersover 160,000,000 of them on a daily
21 basis. By contrast, the largest cable television pro-
22 vider has 22,430,000 subscribers, while the largest
23 satellite television provider has 21,000,000 sub-
24 scribers. And the most-watched television broadcast
25 in U.S. history had 118,000,000 viewers.
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1 (8) The public nature of broadcast television,
2 radio, and satellite ensures a level of publicity for
3 any political advertisement. These communications
4 are accessible to the press, fact-checkers, and polit-
5 ical opponents; this creates strong disincentives for
6 a candidate to disseminate materially false, inflam-
7 matory, or contradictory messages to the public. So-
8 cial media platforms, in contrast, can target portions
9 of the electorate with direct, ephemeral advertise-
10 ments often on the basis of private information the
11 platform has on individuals, enabling political adver-
12 tisements that are contradictory, racially or socially
13 inflammatory, or materially false.
14 (9) According to comScore, 2 companies own 8
15 of the 10 most popular smartphone applications as
16 of June 2017, including the most popular social
17 media and email serviceswhich deliver information
18 and news to users without requiring proactivity by
19 the user. Those same 2 companies accounted for 99
20 percent of revenue growth from digital advertising in
21 2016, including 77 percent of gross spending. 79
22 percent of online Americansrepresenting 68 per-
23 cent of all Americansuse the single largest social
24 network, while 66 percent of these users are most
25 likely to get their news from that site.
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1 (10) In its 2006 rulemaking, the Federal Elec-
2 tion Commission noted that only 18 percent of all
3 Americans cited the Internet as their leading source
4 of news about the 2004 presidential election; by con-
5 trast, the Pew Research Center found that 65 per-
6 cent of Americans identified an Internet-based
7 source as their leading source of information for the
8 2016 election.
9 (11) The Federal Election Commission, the
10 independent Federal agency charged with protecting
11 the integrity of the Federal campaign finance proc-
12 ess by providing transparency and administering
13 campaign finance laws, has failed to take action to
14 address online political advertisements.
15 (12) In testimony before the Senate Select
16 Committee on Intelligence titled, Disinformation: A
17 Primer in Russian Active Measures and Influence
18 Campaigns, multiple expert witnesses testified that
19 while the disinformation tactics of foreign adver-
20 saries have not necessarily changed, social media
21 services now provide platform[s] practically pur-
22 pose-built for active measures[.] Similarly, as Gen.
23 (RET) Keith B. Alexander, the former Director of
24 the National Security Agency, testified, during the
25 Cold War if the Soviet Union sought to manipulate
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1 information flow, it would have to do so principally
2 through its own propaganda outlets or through ac-
3 tive measures that would generate specific news:
4 planting of leaflets, inciting of violence, creation of
5 other false materials and narratives. But the news
6 itself was hard to manipulate because it would have
7 required actual control of the organs of media, which
8 took long-term efforts to penetrate. Today, however,
9 because the clear majority of the information on so-
10 cial media sites is uncurated and there is a rapid
11 proliferation of information sources and other sites
12 that can reinforce information, there is an increasing
13 likelihood that the information available to average
14 consumers may be inaccurate (whether intentionally
15 or otherwise) and may be more easily manipulable
16 than in prior eras..
17 (13) Current regulations on political advertise-
18 ments do not provide sufficient transparency to up-
19 hold the publics right to be fully informed about po-
20 litical advertisements made online.
21 SEC. 4. SENSE OF CONGRESS.

22 It is the sense of Congress that


23 (1) the dramatic increase in digital political ad-
24 vertisements, and the growing centrality of online
25 platforms in the lives of Americans, requires the
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1 Congress and the Federal Election Commission to
2 take meaningful action to ensure that laws and reg-
3 ulations provide the accountability and transparency
4 that is fundamental to our democracy;.
5 (2) free and fair elections require both trans-
6 parency and accountability which give the public a
7 right to know the true sources of funding for polit-
8 ical advertisements in order to make informed polit-
9 ical choices and hold elected officials accountable;
10 and
11 (3) transparency of funding for political adver-
12 tisements is essential to enforce other campaign fi-
13 nance laws, including the prohibition on campaign
14 spending by foreign nationals.
15 SEC. 5. EXPANSION OF DEFINITION OF PUBLIC COMMU-

16 NICATION.

17 (a) IN GENERAL.Paragraph (22) of section 301 of


18 the Federal Election Campaign Act of 1971 (52 U.S.C.
19 30101(22)) is amended by striking or satellite commu-
20 nication and inserting satellite, paid Internet, or paid
21 digital communication.
22 (b) TREATMENT OF CONTRIBUTIONS AND EXPENDI-
23 TURES.Section 301 of such Act (52 U.S.C. 30101) is
24 amended
25 (1) in paragraph (8)(B)
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1 (A) by striking on broadcasting stations,
2 or in newspapers, magazines, or similar types of
3 general public political advertising in clause
4 (v) and inserting in any public communica-
5 tion;
6 (B) by striking broadcasting, newspaper,
7 magazine, billboard, direct mail, or similar type
8 of general public communication or political ad-
9 vertising in clause (ix)(1) and inserting pub-
10 lic communication; and
11 (C) by striking but not including the use
12 of broadcasting, newspapers, magazines, bill-
13 boards, direct mail, or similar types of general
14 public communication or political advertising
15 in clause (x) and inserting but not including
16 use in any public communication; and
17 (2) in paragraph (9)(B)
18 (A) by striking clause (i) and inserting the
19 following:
20 (i) any news story, commentary, or
21 editorial distributed through the facilities
22 of any broadcasting station or any print,
23 online, or digital newspaper, magazine,
24 blog, publication, or periodical, unless such
25 broadcasting, print, online, or digital facili-
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1 ties are owned or controlled by any polit-
2 ical party, political committee, or can-
3 didate;; and.
4 (B) by striking on broadcasting stations,
5 or in newspapers, magazines, or similar types of
6 general public political advertising in clause
7 (iv) and inserting in any public communica-
8 tion.
9 (c) DISCLOSURE AND DISCLAIMER STATEMENTS.
10 Subsection (a) of section 318 of such Act (52 U.S.C.
11 30120) is amended
12 (1) by striking financing any communication
13 through any broadcasting station, newspaper, maga-
14 zine, outdoor advertising facility, mailing, or any
15 other type of general public political advertising
16 and inserting financing any public communication;
17 and
18 (2) by striking solicits any contribution
19 through any broadcasting station, newspaper, maga-
20 zine, outdoor advertising facility, mailing, or any
21 other type of general public political advertising
22 and inserting solicits any contribution through any
23 public communication.
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1 SEC. 6. EXPANSION OF DEFINITION OF ELECTIONEERING

2 COMMUNICATION.

3 (a) EXPANSION TO ONLINE COMMUNICATIONS.


4 (1) APPLICATION TO QUALIFIED INTERNET AND

5 DIGITAL COMMUNICATIONS.

6 (A) IN GENERAL.Subparagraph (A) of


7 section 304(f)(3) of the Federal Election Cam-
8 paign Act of 1971 (52 U.S.C. 30104(f)(3)(A))
9 is amended by striking or satellite communica-
10 tion each place it appears in clauses (i) and
11 (ii) and inserting satellite, or qualified Inter-
12 net or digital communication.
13 (B) QUALIFIED INTERNET OR DIGITAL

14 COMMUNICATION.Paragraph (3) of section


15 304(f) of such Act (52 U.S.C. 30104(f)) is
16 amended by adding at the end the following
17 new subparagraph:
18 (D) QUALIFIED INTERNET OR DIGITAL

19 COMMUNICATION.The term qualified Internet


20 or digital communication means any commu-
21 nication which is placed or promoted for a fee
22 on an online platform (as defined in subsection
23 (j)(3))..
24 (2) NONAPPLICATION OF RELEVANT ELEC-

25 TORATE TO ONLINE COMMUNICATIONS.Section

26 304(f)(3)(A)(i)(III) of such Act (52 U.S.C.


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1 30104(f)(3)(A)(i)(III)) is amended by inserting any
2 broadcast, cable, or satellite before communica-
3 tion.
4 (3) NEWS EXEMPTION.Section

5 304(f)(3)(B)(i) of such Act (52 U.S.C.


6 30104(f)(3)(B)(i)) is amended to read as follows:
7 (i) a communication appearing in a
8 news story, commentary, or editorial dis-
9 tributed through the facilities of any
10 broadcasting station or any online or dig-
11 ital newspaper, magazine, blog, publica-
12 tion, or periodical, unless such broad-
13 casting, online, or digital facilities are
14 owned or controlled by any political party,
15 political committee, or candidate;.
16 (b) EFFECTIVE DATE.The amendments made by
17 this section shall apply with respect to communications
18 made on or after January 1, 2018.
19 SEC. 7. APPLICATION OF DISCLAIMER STATEMENTS TO ON-

20 LINE COMMUNICATIONS.

21 (a) CLEAR AND CONSPICUOUS MANNER REQUIRE-


22 MENT.Subsection (a) of section 318 of the Federal Elec-
23 tion Campaign Act of 1971 (52 U.S.C. 30120(a)) is
24 amended
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1 (1) by striking shall clearly state each place
2 it appears in paragraphs (1), (2), and (3) and in-
3 serting shall state in a clear and conspicuous man-
4 ner, and
5 (2) by adding at the end the following flush
6 sentence: For purposes of this subsection, a com-
7 munication does not make a statement in a clear
8 and conspicuous manner if it is difficult to read or
9 hear or if the placement is easily overlooked..
10 (b) SPECIAL RULES FOR QUALIFIED INTERNET OR

11 DIGITAL COMMUNICATIONS.
12 (1) IN GENERAL.Section 318 of such Act (52
13 U.S.C. 30120) is amended by adding at the end the
14 following new subsection:
15 (e) SPECIAL RULES FOR QUALIFIED INTERNET OR

16 DIGITAL COMMUNICATIONS.
17 (1) SPECIAL RULES WITH RESPECT TO STATE-

18 MENTS.In the case of any qualified Internet or


19 digital communication (as defined in section
20 304(f)(3)(D)) which is disseminated through a me-
21 dium in which the provision of all of the information
22 specified in this section is not possible, the commu-
23 nication shall, in a clear and conspicuous manner
24 (A) state the name of the person who
25 paid for the communication; and
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1 (B) provide a means for the recipient of
2 the communication to obtain the remainder of
3 the information required under this section with
4 minimal effort and without receiving or viewing
5 any additional material other than such re-
6 quired information.
7 (2) SAFE HARBOR FOR DETERMINING CLEAR

8 AND CONSPICUOUS MANNER.A statement in a


9 qualified Internet or digital communication (as de-
10 fined in section 304(f)(3)(D)) shall be considered to
11 be made in a clear and conspicuous manner as pro-
12 vided in subsection (a) if the communication meets
13 the following requirements:
14 (A) TEXT OR GRAPHIC COMMUNICA-

15 TIONS.In the case of a text or graphic com-


16 munication, the statement
17 (i) appears in letters at least as large
18 as the majority of the text in the commu-
19 nication; and
20 (ii) meets the requirements of para-
21 graphs (2) and (3) of subsection (c).
22 (B) AUDIO COMMUNICATIONS.In the
23 case of an audio communication, the statement
24 is spoken in a clearly audible and intelligible
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1 manner at the beginning or end of the commu-
2 nication and lasts at least 3 seconds.
3 (C) VIDEO COMMUNICATIONS.In the
4 case of a video communication which also in-
5 cludes audio, the statement
6 (i) is included at either the beginning
7 or the end of the communication; and
8 (ii) is made both in
9 (I) a written format that meets
10 the requirements of subparagraph (A)
11 and appears for at least 4 seconds;
12 and
13 (II) an audible format that
14 meets the requirements of subpara-
15 graph (B).
16 (D) OTHER COMMUNICATIONS.In the
17 case of any other type of communication, the
18 statement is at least as clear and conspicuous
19 as the statement specified in subparagraphs
20 (A), (B), or (C)..
21 (2) NONAPPLICATION OF CERTAIN EXCEP-

22 TIONS.The exceptions provided in section


23 110.11(f)(1)(i) and (ii) of title 11, Code of Federal
24 Regulations, or any successor to such rules, shall
25 have no application to qualified Internet or digital
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1 communications (as defined in section 304(f)(3)(D)
2 of the Federal Election Campaign Act of 1971).
3 (c) MODIFICATION OF ADDITIONAL REQUIREMENTS
4 FOR CERTAIN COMMUNICATIONS.Section 318(d) of such
5 Act (52 U.S.C. 30120(d)) is amended
6 (1) in paragraph (1)(A)
7 (A) by striking which is transmitted
8 through radio and inserting which is in an
9 audio format; and
10 (B) by striking BY RADIO in the heading
11 and inserting AUDIO FORMAT;

12 (2) in paragraph (1)(B)


13 (A) by striking which is transmitted
14 through television and inserting which is in
15 video format; and
16 (B) by striking BY TELEVISION in the
17 heading and inserting VIDEO FORMAT; and
18 (3) in paragraph (2)
19 (A) by striking transmitted through radio
20 or television and inserting made in audio or
21 video format; and
22 (B) by striking through television in the
23 second sentence and inserting in video for-
24 mat.
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1 SEC. 8. POLITICAL RECORD REQUIREMENTS FOR ADVER-

2 TISING ON ONLINE PLATFORMS.

3 (a) IN GENERAL.Section 304 of the Federal Elec-


4 tion Campaign Act of 1971 (52 U.S.C. 30104) is amended
5 by adding at the end the following new subsection:
6 (j) DISCLOSURE OF CERTAIN ONLINE ADVERTISE-
7 MENTS.

8 (1) IN GENERAL.

9 (A) REQUIREMENTS FOR ONLINE PLAT-

10 FORMS.An online platform shall maintain,


11 and make available for online public inspection
12 in machine readable format, a complete record
13 of any request to purchase on such online plat-
14 form a qualified political advertisement which is
15 made by a person whose aggregate requests to
16 purchase qualified political advertisements on
17 such online platform during the preceding 12
18 months exceeds $500.
19 (B) REQUIREMENTS FOR ADVER-

20 TISERS.Any person who requests to purchase


21 a qualified political advertisement on an online
22 platform shall provide the online platform with
23 such information as is necessary for the online
24 platform to comply with the requirements of
25 subparagraph (A).
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1 (2) CONTENTS OF RECORD.A record main-
2 tained under paragraph (1)(A) shall contain
3 (A) a digital copy of the qualified political
4 advertisement;
5 (B) a description of the audience targeted
6 by the advertisement, the number of views gen-
7 erated from the advertisement, and the date
8 and time that the advertisement is first dis-
9 played and last displayed; and
10 (C) information regarding
11 (i) the average rate charged for the
12 advertisement;
13 (ii) the name of the candidate to
14 which the advertisement refers and the of-
15 fice to which the candidate is seeking elec-
16 tion, the election to which the advertise-
17 ment refers, or the national legislative
18 issue to which the advertisement refers (as
19 applicable);
20 (iii) in the case of a request made
21 by, or on behalf of, a candidate, the name
22 of the candidate, the authorized committee
23 of the candidate, and the treasurer of such
24 committee; and
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1 (iv) in the case of any request not
2 described in clause (iii), the name of the
3 person purchasing the advertisement, the
4 name, address, and phone number of a
5 contact person for such person, and a list
6 of the chief executive officers or members
7 of the executive committee or of the board
8 of directors of such person.
9 (3) ONLINE PLATFORM.For purposes of this
10 subsection, the term online platform means any
11 public-facing website, Web application, or digital ap-
12 plication (including a social network, ad network, or
13 search engine) which
14 (A) sells qualified political advertise-
15 ments; and
16 (B) has 50,000,000 or more unique
17 monthly United States visitors or users for a
18 majority of months during the preceding 12
19 months.
20 (4) QUALIFIED POLITICAL ADVERTISEMENT.

21 (A) IN GENERAL.For purposes of this


22 subsection, the term qualified political adver-
23 tisement means any advertisement (including
24 search engine marketing, display advertise-
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1 ments, video advertisements, native advertise-
2 ments, and sponsorships) that
3 (i) is made by or on behalf of a can-
4 didate; or
5 (ii) communicates a message relating
6 to any political matter of national impor-
7 tance, including
8 (I) a candidate;
9 (II) any election to Federal of-
10 fice; or
11 (III) a national legislative issue
12 of public importance
13 (5) TIME TO MAINTAIN FILE.The informa-
14 tion required under this subsection shall be made
15 available as soon as possible and shall be retained by
16 the online platform for a period of not less than 4
17 years.
18 (6) PENALTIES.For penalties for failure by
19 online platforms, and persons requesting to purchase
20 a qualified political advertisement on online plat-
21 forms, to comply with the requirements of this sub-
22 section, see section 309..
23 (b) RULEMAKING.Not later than 90 days after the
24 date of the enactment of this Act, the Federal Election
25 Commission shall establish rules
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1 (1) requiring common data formats for the
2 record required to be maintained under section
3 304(j) of the Federal Election Campaign Act of
4 1971 (as added by subsection (a)) so that all online
5 platforms submit and maintain data online in a com-
6 mon, machine-readable and publicly accessible for-
7 mat; and
8 (2) establishing search interface requirements
9 relating to such record, including searches by can-
10 didate name, issue, purchaser, and date.
11 (c) REPORTING.Not later than 2 years after the
12 date of the enactment of this Act, and biannually there-
13 after, the Chairman of the Federal Election Commission
14 shall submit a report to Congress on
15 (1) matters relating to compliance with and the
16 enforcement of the requirements of section 304(j) of
17 the Federal Election Campaign Act of 1971, as
18 added by subsection (a);
19 (2) recommendations for any modifications to
20 such section to assist in carrying out its purposes;
21 and
22 (3) identifying ways to bring transparency and
23 accountability to political advertisements distributed
24 online for free.
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1 SEC. 9. PREVENTING CONTRIBUTIONS, EXPENDITURES,

2 INDEPENDENT EXPENDITURES, AND DIS-

3 BURSEMENTS FOR ELECTIONEERING COM-

4 MUNICATIONS BY FOREIGN NATIONALS IN

5 THE FORM OF ONLINE ADVERTISING.

6 Section 319 of the Federal Election Campaign Act


7 of 1971 (52 U.S.C. 30121) is amended by adding at the
8 end the following new subsection:
9 (c) Each television or radio broadcast station, pro-
10 vider of cable or satellite television, or online platform (as
11 defined in section 304(j)(3)) shall make reasonable efforts
12 to ensure that communications described in section 318(a)
13 and made available by such station, provider, or platform
14 are not purchased by a foreign national, directly or indi-
15 rectly..

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