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Frank Pasquale

    Frank Pasquale

    Richard Susskind (and his son Daniel) offer a technocratic, neoliberal, and techno-utopian outlook on the future of the professions. Thanks to these ideological priors, a persistent mistake undermines their book: they conflate the... more
    Richard Susskind (and his son Daniel) offer a technocratic, neoliberal, and techno-utopian outlook on the future of the professions. Thanks to these ideological priors, a persistent mistake undermines their book: they conflate the professional role with the delivery of expertise. Thus they fail to seriously address two issues at the core of professional identity. First, there is some degree of self-governance among professionals. They primarily work with clients or patients, for example, and not for bosses or shareholders. Second, the main reason they enjoy this autonomy is because they must handle intractable conflicts of values that repeatedly require thoughtful discretion, negotiation, and personal attention and responsibility. In isolation, these factors damage the Susskinds’ case; together, they prove fatal to it.
    Over the past decade, algorithmic accountability has become an important concern for social scientists, computer scientists, journalists, and lawyers [1]. Exposés have sparked vibrant debates about algorithmic sentencing. Researchers have... more
    Over the past decade, algorithmic accountability has become an important concern for social scientists, computer scientists, journalists, and lawyers [1]. Exposés have sparked vibrant debates about algorithmic sentencing. Researchers have exposed tech giants showing women ads for lower-paying jobs, discriminating against the aged, deploying deceptive dark patterns to trick consumers into buying things, and manipulating users toward rabbit holes of extremist content. Public-spirited regulators have begun to address algorithmic transparency and online fairness, building on the work of legal scholars who have called for technological due process, platform neutrality, and nondiscrimination principles. This policy work is just beginning, as experts translate academic research and activist demands into statutes and regulations. Lawmakers are proposing bills requiring basic standards of algorithmic transparency and auditing. We are starting down on a long road toward ensuring that AI-based hiring practices and financial underwriting are not used if they have a disparate impact on historically marginalized communities. And just as this "first wave" of algorithmic accountability research and activism has targeted existing systems, an emerging "second wave" of algorithmic accountability has begun to address more structural concerns. Both waves will be essential to ensure a fairer, and more genuinely emancipatory, political economy of technology. Second wave work is particularly important when it comes to illuminating the promise & perils of formalizing evaluative criteria.
    Algorithms increasingly govern our social world, transforming data into scores or rankings that decide who gets credit, jobs, dates, policing, and much more. Law and policy experts publish new articles daily on how the algorithms behind... more
    Algorithms increasingly govern our social world, transforming data into scores or rankings that decide who gets credit, jobs, dates, policing, and much more. Law and policy experts publish new articles daily on how the algorithms behind artificial intelligence (AI) shape our lives, and a growing community of researchers has developed a field known as “Fairness, Accuracy, and Transparency in Machine Learning.” But what does fairness mean in this context? And why are policy experts increasingly worried about unfair judgments and discrimination by AI? This talk will center on a series of opportunities and challenges posed by algorithmic social order, and will present the broad outlines of leading American, Chinese and European policy initiatives in the area
    To negotiate contemporary algorithms of reputation and search, we are increasingly pressured to adopt an algorithmic self, one conditioned to maximize exposure and approval. This algorithmic selfhood may be critical to finding job... more
    To negotiate contemporary algorithms of reputation and search, we are increasingly pressured to adopt an algorithmic self, one conditioned to maximize exposure and approval. This algorithmic selfhood may be critical to finding job opportunities (or even maintaining a reliable circle of friends and family) in an era of accelerating social change. But it can also become selfdefeating or worse. Many important algorithms remain stubbornly opaque amid rapidly changing social norms. A cyber-vertigo results, as we are pressed to promote our algorithmic selves but puzzled over the best way to do so. There is a delicate balance between using new technologies and being used by them. There are few experiences more anaesthetizing than the Pavlovian cycle of posting, liking/faving, being liked/faved, and “engagement” online. Without a stronger sense of commitments that endure above and beyond the feedback and control mechanisms of Big Data and big platforms, we are doomed to selves comprehensive...
    If scientists want to avoid making data and code reproducible, they can engage in a number of legal maneuvers pioneered by businesses seeking to keep data proprietary. Copyright protection is available for both software and for the... more
    If scientists want to avoid making data and code reproducible, they can engage in a number of legal maneuvers pioneered by businesses seeking to keep data proprietary. Copyright protection is available for both software and for the original selection and arrangement of databases, and can in turn be reinforced by “anticircumvention measures” which the Digital Millennium Copyright Act makes illegal to tamper with. The law of trade secrecy applies to forprofit and non-profit institutions alike, allowing them to recover damages from those who wrongfully disclose ...
    Scholars of intellectual property (" IP") participate in many conversations. Influenced by the political and constitutional theory of public reason, we have sought consensus on the best doctrines, regulations, and statutory... more
    Scholars of intellectual property (" IP") participate in many conversations. Influenced by the political and constitutional theory of public reason, we have sought consensus on the best doctrines, regulations, and statutory schemes for promoting innovation and its equitable dissemination.'Religious thought has
    Abstract: A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration... more
    Abstract: A new domestic intelligence network has made vast amounts of data available to federal and state agencies and law enforcement officials. The network is anchored by “fusion centers,” novel sites of intergovernmental collaboration that generate and share intelligence and information. Several fusion centers have generated controversy for engaging in extraordinary measures that place citizens on watch lists, invade citizens' privacy, and chill free expression. In addition to eroding civil liberties, fusion center ...
    Abortion, euthanasia, and the death penalty have sparked emotional public debates for the past three decades. Just as these controversies over life-termination have forced us to think systematically about ethics in the public domain, new... more
    Abortion, euthanasia, and the death penalty have sparked emotional public debates for the past three decades. Just as these controversies over life-termination have forced us to think systematically about ethics in the public domain, new technologies of life-extension will provoke controversy in the twenty-first century. Known generally as regenerative medicine, the new health care seeks not only to cure disease but to arrest the aging process itself. So far, public attention to regenerative medicine has focused on two of its methods: ...
    Julie Cohen\u27s Configuring the Networked Self is an extraordinarily insightful book. Cohen not only applies extant theory to law; she also distills it into her own distinctive social theory of the information age. Thus, even relatively... more
    Julie Cohen\u27s Configuring the Networked Self is an extraordinarily insightful book. Cohen not only applies extant theory to law; she also distills it into her own distinctive social theory of the information age. Thus, even relatively short sections of chapters of her book often merit article-length close readings. I here offer a brief for the practical importance of Cohen’s theory, and ways it should influence intellectual property policy and scholarship
    The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs... more
    The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided in Sony v. Universal Studios (Sony) that unauthorized home taping of television programs was a fair use of such programs. Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority\u27s case that the videotape recorder was capable of substantial non-infringing uses and therefore legal. In the twenty years since Sony, the dissent\u27s skepticism about the fairness of time-shifting has gotten about as warm a reception in appellate courts as the majority\u27s position. Courts have been sharply divided on how to assess the effect of a contested use on the market for or value of the plaintiff\u27s copyrighted work - a key factor in fair use analysis. The Sony majority broadly considered the effect of the contested use on the value of the copyrighted work overall, rather than narrowly considering its e...
    Article published in the Michigan State Law Review.
    Abstract: Leading finance, health care, and internet firms shroud key operations in secrecy. Our markets, research, and life online are increasingly mediated by institutions that suffer serious transparency deficits. When a private entity... more
    Abstract: Leading finance, health care, and internet firms shroud key operations in secrecy. Our markets, research, and life online are increasingly mediated by institutions that suffer serious transparency deficits. When a private entity grows important enough, it should be subject to transparency requirements that reflect its centrality. The increasing intertwining of governmental, business, and academic entities should provide some leverage for public-spirited appropriators and policymakers to insist on more general openness.
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    This is a foreword to an issue of the Seton Hall Law Review dedicated to the scholarly legacy of Professor Marc Poirier. Marc was an exceptional scholar, teacher, and colleague. He was a deeply learned man, conversant in areas ranging... more
    This is a foreword to an issue of the Seton Hall Law Review dedicated to the scholarly legacy of Professor Marc Poirier. Marc was an exceptional scholar, teacher, and colleague. He was a deeply learned man, conversant in areas ranging from the jurisprudence of interpretation to the science of global warming. This foreword both celebrates Marc’s scholarly legacy, and introduces four works in the special issue inspired by his work.
    For many legal futurists, attorneys’ work is a prime target for automation. They view the legal practice of most businesses as algorithmic: data (such as facts) are transformed into outputs (agreements or litigation stances) via... more
    For many legal futurists, attorneys’ work is a prime target for automation. They view the legal practice of most businesses as algorithmic: data (such as facts) are transformed into outputs (agreements or litigation stances) via application of set rules (the law). These technophiles promote substituting computer code for contracts and descriptions of facts now written by humans. They point to early successes in legal automation as proof of concept. For example, TurboTax has helped millions of Americans file taxes, and algorithms have taken over certain aspects of stock trading. Corporate efforts to “formalize legal code” may bring new efficiencies in areas of practice characterized by both legal and factual clarity. Legal automation, however, can also elide or exclude important human values, necessary improvisations, and irreducibly deliberative governance. Due process depends on narratively intelligible communication from persons and for persons that are not reducible to software. ...
    Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the... more
    Environmental laws are designed to reduce negative externalities (such as pollution) that harm the natural environment. Copyright law should adjust the rights of content creators in order to compensate for the ways they reduce the usefulness of the information environment as a whole. Every new work created contributes to the store of expression, but also makes it more difficult to find whatever work one wants. Such search costs have been well-documented in information economics. Copyright law should take information overload externalities like search costs into account in its treatment of alleged copyright infringers whose work merely attempts to index, organize, categorize, or review works by providing small samples of them. They are not free riding off the labor of copyright holders, but rather are creating the types of navigational tools and filters that help consumers make sense of the ocean of expression copyright holders have created. By modeling information overload as an ext...
    This Article examines how new technologies generate privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current... more
    This Article examines how new technologies generate privacy challenges for both healthcare providers and patients, and how American health privacy laws may be interpreted or amended to address these challenges. Given the current implementation of Meaningful Use rules for health information technology and the Omnibus HIPAA Rule in health care generally, the stage is now set for a distinctive law of “health information” to emerge. HIPAA has come of age of late, with more aggressive enforcement efforts targeting wayward healthcare providers and entities. Nevertheless, more needs to be done to assure that health privacy and all the values it is meant to protect are actually vindicated in an era of ever faster and more pervasive data transfer and analysis. After describing how cloud computing is now used in healthcare, this Article examines nascent and emerging cloud applications and big data processing methods. Current regulation addresses many of these scenarios, but also leaves some i...
    The public sphere has experienced yet another structural transformation. Firms like Facebook and Google have largely automated the types of decisions made by managers at television networks, or editors at newspapers — but with much more... more
    The public sphere has experienced yet another structural transformation. Firms like Facebook and Google have largely automated the types of decisions made by managers at television networks, or editors at newspapers — but with much more powerful effects. Long critiqued in academic circles, the manifest inadequacy of this new media landscape is now itself a matter of public debate. The deficiencies of the automated public sphere are so manifest that consumer protection and media regulatory authorities must intervene. As they do so, they should carefully examine how emergent dynamics of communicative capitalism vitiate older societal protections. New methods of monitoring and regulation should be as technologically sophisticated and comprehensive as the automated public sphere they target. This article first describes the documented, negative effects of online propagandists’ interventions (and platforms’ neglect) in both electoral politics and the broader public sphere (Part I). It th...
    One may challenge conventional narratives of platform capitalism by contesting the empirical validity of their factual foundations. Such an empirical approach is one way of pursuing a fruitful hermeneutics of suspicion. But it is not... more
    One may challenge conventional narratives of platform capitalism by contesting the empirical validity of their factual foundations. Such an empirical approach is one way of pursuing a fruitful hermeneutics of suspicion. But it is not sufficient to dislodge conventional narratives from the heuristics so often resorted to by policymakers. Rather, just as it “takes a theory to beat a theory,” a plausible counternarrative is far more likely to displace a conventional narrative than isolated empirical challenges to the conventional narrative’s factual foundations. This essay develops a counternarrative to dominant approaches to platform capitalism.
    Law can advance or retard the distributive effects of innovation and its diffusion in many ways. Certain technologies merit special monitoring because they promote the leveraging of economic advantage into social or cultural advantage... more
    Law can advance or retard the distributive effects of innovation and its diffusion in many ways. Certain technologies merit special monitoring because they promote the leveraging of economic advantage into social or cultural advantage without substantially increasing overall social welfare. Others threaten to undermine collective values and perceptions commonly used to evaluate technology. A final category threatens to do both, creating unfair or wasteful competition while blunting our capacity to recognize its morally dubious character. As new sectors of life become more game-like and competitive, methods of leveling the playing field developed in sports and college admissions might become more broadly relevant. Inequality impact statements may be as important to our cultural environment as environmental impact statements are to the natural world. Finally, current laws regulating the use of controlled substances may need to be extended to precision chemical-based emotional enhancem...
    Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy,... more
    Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones. As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to be modernized for the digital age to reflect the power of aggregating intermediaries. Search engines, social networks, and other digital tools may maintain the salience and power of certain information long after formal processes have determined it to be untrue, irrelevant, or un...
    Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards... more
    Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to industry to help it avoid preventable accidents. It will also assist a judiciary that is increasingly called upon to develop common law in response to legal disputes arising out of the deployment of AI.
    Frank Pasquale, professor of law at the University of Maryland, reflects on the roles of machines and machine learning in today’s society, and to what extent ‘opaque’ algorithmic systems should be subject to human oversight.
    This article addresses many critiques of income-based repayment programs for student loan debt. These programs are not helping many of the students they were designed to aid. Their terms are too harsh, especially given repeated failures... more
    This article addresses many critiques of income-based repayment programs for student loan debt. These programs are not helping many of the students they were designed to aid. Their terms are too harsh, especially given repeated failures by relevant authorities to fully account for the benefits of higher education. If reformers fail to substantially improve the terms and accessibility of IBR programs, they will lose popularity and credibility.
    There are opportunities but also worrisome trends as AI is applied in finance, insurance, and real estate. In these domains, persons are increasingly assessed and judged by machines. The financial technology (Fintech) landscape ranges... more
    There are opportunities but also worrisome trends as AI is applied in finance, insurance, and real estate. In these domains, persons are increasingly assessed and judged by machines. The financial technology (Fintech) landscape ranges from automation of office procedures, to new ap- proaches for storing and transferring value, to the granting of credit. The Fintech landscape can be separated into “in- crementalist Fintech” and “futurist Fintech.” Incremental- ist Fintech uses data, algorithms, and software to comple- ment professionals who perform traditional tasks of exist- ing financial institutions. It promises financial inclusion, but this inclusion can be predatory, creepy, and subordi- nating. These forms of financial inclusion undermine their solvency, dignity, and political power of borrowers. Futur- ist Fintech’s promoters claim to be more equitable, but are likely to falter in their aspiration to substitute technology for key financial institutions. When used to circumvent...
    French Abstract: A l'heure actuelle, le theme de la surveillance est sujet a controverses. De gigantesques appareils de renseignements nationaux et internationaux sont appams en Europe, en Amerique du Nord et en Asie. Ils commettent... more
    French Abstract: A l'heure actuelle, le theme de la surveillance est sujet a controverses. De gigantesques appareils de renseignements nationaux et internationaux sont appams en Europe, en Amerique du Nord et en Asie. Ils commettent parfois des erreurs spectaculaires, ignorant des menaces reelles ou, a l'inverse, stigmatisant et jetant en prison des personnes innocentes. Les services de renseignement ont alors tendance a mettre leurs echecs sur le compte de l'insuffisance des moyens de surveillance. D'apres eux, si l'on pouvait avoir acces a de plus grandes reserves de donnees, et de maniere plus immediate, on serait alors capable de detecter, de prevenir et de mettre en echec davantage de menaces. Quand de tels moyens de surveillance sont demandes, l'on observe que certaines franges de la societe ont la possibilite de mobiliser des ressources en vue de s'y opposer, tandis que d'autres ne le peuvent pas . En voici un exemple : une fraude commise aux E...
    Jack Balkin makes several important contributions to legal theory and ethics in his lecture, “The Three Laws of Robotics in the Age of Big Data.” He proposes “laws of robotics” for an “algorithmic society” characterized by “social and... more
    Jack Balkin makes several important contributions to legal theory and ethics in his lecture, “The Three Laws of Robotics in the Age of Big Data.” He proposes “laws of robotics” for an “algorithmic society” characterized by “social and economic decision making by algorithms, robots, and AI agents.” These laws both elegantly encapsulate, and add new principles to, a growing movement for accountable design and deployment of algorithms. My comment aims to 1) contextualize his proposal as a kind of “regulation of regulation,” familiar from the perspective of administrative law, 2) expand the range of methodological perspectives capable of identifying “algorithmic nuisance,” a key concept in Balkin’s lecture, and 3) propose a fourth law of robotics to ensure the viability of Balkin’s three laws.
    The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided that unauthorized home taping of television programs was a "fair use" of such... more
    The fair use doctrine permits certain uses of copyrighted material that are unauthorized by the copyright holder. In 1984, the Supreme Court decided that unauthorized home taping of television programs was a "fair use" of such programs.2 Decried by the dissent and frequently contested in ensuing cases, that decision sealed the majority's case that the videotape recorder 3 was capable of substantial noninfringing uses. 4
    I INTRODUCTION Neoliberals advocate for "marketization," but the transition to markets in pervasively regulated fields like health, defense, and education is complex. There is no way out but through. The state itself must... more
    I INTRODUCTION Neoliberals advocate for "marketization," but the transition to markets in pervasively regulated fields like health, defense, and education is complex. There is no way out but through. The state itself must capitulate to (and coordinate) its subjects' purported emancipation from it. (1) Thus a paradox threatens the coherence of the thought of neoliberals. Wealth accumulation up to now, they assert, has been distorted by various ill-considered or malicious state interventions. Reform is imperative. But the past maldistribution of wealth biases the present political playing field: tycoons who won crony capitalist favors in the past are going to use those gains to influence future elections, and in particular the future terms of marketization. So the neoliberal doubles down publicly: as the contemporary political economist of laissez-faire, he insists that legislative, regulatory, and cognitive capture just prove that the state needs to be shrunk. Left un- ...
    Health information technology can save lives, cut costs, and expand access to care. But its full promise will only be realized if policymakers broker a “grand bargain” between providers, patients, and administrative agencies. In exchange... more
    Health information technology can save lives, cut costs, and expand access to care. But its full promise will only be realized if policymakers broker a “grand bargain” between providers, patients, and administrative agencies. In exchange for subsidizing systems designed to protect intellectual property and secure personally identifiable information, health regulators should have full access to key data those systems collect.Successful data-mining programs at the Centers for Medicare & Medicaid Services (“CMS”) provide one model. By requiring standardized collection of billing data and hiring private contractors to analyze it, CMS pioneered innovative techniques for punishing fraud. Now it must move beyond deterring illegal conduct and move toward data-driven promotion of best practices. With this aim in mind, CMS is already subsidizing technology, but more than money is needed to optimize the collection, analysis, and use of data. Policymakers need to navigate intellectual property ...
    Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers — or deadbeats, shirkers, menaces, and “wastes of time.”... more
    Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers — or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail — credit — the law focuses on credit history, not the derivation of scores from data. Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform basic safeguards. Regulators should be able to test scoring systems to ensure their fairness and accuracy. Individuals should be granted meaningful opportunities to challenge adverse decisions based on scores miscategorizing them. Without such protections in place, syste...
    Over the last decade, a growing number of digital startups launched bids to lure business from the financial services industry. Financial technology (“fintech”) firms deploying ever more complex and opaque algorithms assess the... more
    Over the last decade, a growing number of digital startups launched bids to lure business from the financial services industry. Financial technology (“fintech”) firms deploying ever more complex and opaque algorithms assess the creditworthiness of consumers. Armed with vast quantities of data and complex algorithms to interpret the data, these firms are reigniting debates about how best to regulate financial institutions and technology firms engaged in consumer banking activities. <br><br>With a few quick taps on a smart phone, consumers can access a growing universe of apps that offer discounted interest rates on consumer loans. For proponents, the launch of fintech firms marks a new frontier in the ever-expanding utopian vision of the “technological sublime” or faith-like devotion to the potential for technology to transform us into a more equitable and just society. Consumer advocates are justifiably skeptical. While legally prohibited today, well-documented discrimin...
    Professor Zarsky’s response 1 is an erudite and thoughtful analysis of the discrimination concerns raised by our article, The Scored Society. 2 We particularly appreciate his connection of themes in our article with literature on... more
    Professor Zarsky’s response 1 is an erudite and thoughtful analysis of the discrimination concerns raised by our article, The Scored Society. 2 We particularly appreciate his connection of themes in our article with literature on discrimination law. This historical awareness and theoretical sophistication demonstrates the deep continuity between our concerns and those of other legal scholars. Professor Zarsky has led us to realize that there are in fact several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our article. In this response, we clarify our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform. Before responding, though, we should acknowledge Professor ...
    Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it.... more
    Most non-profit law schools generate public goods of enormous value: important research, service to disadvantaged communities, and instruction that both educates students about present legal practice and encourages them to improve it. Each of these missions informs and enriches the others. However, technocratic management practices menace law schools’ traditional missions of balancing theory and practice, advocacy and scholarly reflection, study of and service to communities. This article defends the unity and complementarity of law schools’ research, service, and teaching roles. (For those short on time, the chart on pages 45-46 encapsulates the conflicting critiques of law schools which this article responds to.)

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