Chapter 11 of 28 · The Privatization of Roads and Highways by Walter Block
7. Compromising the Uncompromisable: Speed Limits, Parades, Cigarettes
Libertarian, political, and economic philosophy is based on the nonaggression axiom.1 In this perspective the one act that ought to be legally proscribed is the initiation of violence against nonaggressors. There are many who disagree with this view. Some maintain that far more ought to be illegal; others that not all invasions should be. While the critics may disagree amongst themselves on many issues, most have in common the belief that laissez-faire capitalism is altogether too radical. This philosophy has been widely castigated as extremist, fanatical, and as occupying a position on the political spectrum at the very edge.
To some degree these criticisms are undoubtedly true in at least some sense. Libertarianism is indeed a principled philosophy, and any such view must appear to some as rigid or unyielding. However, it is the thesis of the present article that, for at least some issues, free enterprise actually constitutes a moderate or compromise viewpoint. Here, we consider three cases in point: roads, parades, and cigarette smoking.
ROADS
There is a furious albeit scholarly debate regarding optimal speed limits on the nation’s highways.2 It has been waxing and waning over the last several decades. On one side of this issue are those who advocate retention of the 55 mph limits on freeways. Foremost among them are the Naderites, who argue, among other things, that “speed kills.” Although President Clinton signed a bill allowing the states to post higher maximum speeds, at their discretion, it is rumored that he did so only reluctantly. Behind these opinions is a wealth of empirical data suggesting that faster traffic flows will lead to a greater number of fatalities.3
The other side is no less intent upon upholding its view point. One argument stems from freedom, not the pragmatic issue of safety: people should have the right to do whatever they wish, unless their actions constitute an explicit “border crossing” or physical invasion of another person or his property. Even if there is a statistical correlation between deaths and higher (or no) speed limits, this is not equivalent to the initiation of violence. For to go fast is not, per se, to kill someone.4
But the “speed freedom” advocates are not without a response to the claim that faster traffic is dangerous. They argue that it is not speed, but rather the variance of speed which puts motorists at risk.5 For example, if all motorists travel at between 75–80 mph, this will actually be safer than if some proceed at 40 mph (the typical minimum highway requirement) and others, cheek by jowl, at 65 mph (policemen rarely ticket anyone for excessive speed of only 10 mph).
What is the libertarian compromise between these two incompatible positions? The solution is to privatize all highways.6 With all highways, by-ways, streets, roads, thorough fares and other traffic arteries in the hands of private entrepreneurs, there would be no need for government to decide upon any speed regime. Just as the state now plays no role whatsoever regarding the color of cars, or cloths, or crayons, and thus there is no need for any public “decision” regarding these choices, the public sector would entirely absent itself from the decision concerning the rate of motorists. Just as there is now no U.S. government cloth or crayon “policy,” so, too, would there be no speed limit “policy.” Privatization is the only true compromise. Any other “solution” would be arbitrary, merely taking the limits advocated by one side, adding them to the other, and perhaps, dividing by two.7
This privatization compromise is the only one compatible with the libertarian perspective on rights.8 In that view, government nationalization of private property is tantamount to a taking,9 or, more accurately, theft.10 For the only legitimate role of government11 is to protect persons and their property from aggression, and while courts, armies and police are at least relevant to this task, highways are not.
PARADES
A similar problem on the roads arises with regard to their use for parades. Any organized march is necessarily an infringement on the scope of vehicular and pedestrian traffic; and there is no principled, nonarbitrary criterion which can unambiguously determine whether to give the nod to ordinary motorists, to a Fourth of July parade, a New York City marathon, a St. Patrick’s Day parade, or to one for the Nazis marching in Skokie, Illinois.12
The latter two cases, of course, lead to additional challenges. Should the organizers be allowed to exclude gays? On the one hand, the parade belongs to the organizers, heterosexuals of Irish descent. If they don’t want (even Irish) homosexuals to take part, that should be up to them. On the other hand, the event takes place on public property, and bisexuals and lesbians pay taxes for the creation, upkeep and maintenance of the streets just like everyone else. Should the Nazis even be allowed to carry their banners on public streets, much to the outrage of the Jewish population in Skokie, many bearing tattoos from German concentration camps, let alone have an organized march there? The American Civil Liberties Union thinks so, on the grounds of freedom of expression as the first amendment guarantees. There are those, in contrast, who think the only proper destination for such a parade would be right to jail—or right to hell—for holding and popularizing such evil views.
Fortunately, the libertarian compromise solution is able to cut though this Gordian knot of legal and moral complexities like a hot knife through butter. Again, simply privatize the streets! In one fell swoop this intractable problem is solved. It now presents no more of a difficulty than the total nonissue of whether Nazis, or Irishmen, or Martians for that matter should be allowed to rent a hotel room, or a convention center, or any other private meeting ground. Of course they should be, all of them, each and every last one. And they can exclude anyone they wish, for whatever reason, from their essentially private meeting. The foregoing was a challenging issue only because there were private people contending for public space. There is no way to solve this under conditions of public ownership, since all private parties have equal standing under any legal system based on the rule of law.13 The only solution is to reject one of the basic premises—public ownership. Then and only then is there a reasonable resolution of the issue.
This compromise, too, saves generations of judges from twisting in the wind, trying to solve the unsolvable. Right now, happily, the U.S. has no paper clip “policy.” It leaves such matters strictly to private individuals. At present, unfortunately, the state does have a highway speed limit14 and a parade policy. It is time, it is past time, that we applied the principles of free enterprise which work so well for paper clips and bubble gum15 to such contentious issues as speed limits and marching bands.
CIGARETTES
The same insights may also be applied to smoking regulations. Before analyzing this mare’s nest of contending legal philosophies, a sharp distinction must first be drawn between primary and secondary smoke. In the former case, the (alleged) harm of cigarettes is confined to the smoker himself; in the latter, it spills over onto others and thus constitutes an invasion.
One would think that in the relatively straight forward case of primary smoking, the conclusions would be clear: the (adult) user of tobacco products bears any and all risk of his actions. Certainly, particularly in this day and age of compulsory government-inspired warnings16 of the dangers of smoking, no blame can be placed at their doorstep.
Another argument is that, especially in an era of socialized medicine, harming one’s own health is really an “attack” on others, since they will be forced to bear the costs of the smoker’s subsequent ill health. In effect, this is an attempt to convert primary smoking into the secondary variety. Superficially, at least, it succeeds. For under this system, if I hurt myself physically, I hurt you financially.
But this is an entirely spurious conclusion, at least if it is interpreted as successfully converting a primary (personal) problem into secondary (social) one. For the entire transference relies on the institution of socialized medicine. Without it, if I harm myself, I’m no burden to you. Under medical socialism, since I can demand payment from you for harming myself, there is at least a case for you stop me from so doing; e.g., one might argue that it is justified for you to bar me from cigarettes. That this has even a semblance of logic behind it only furnishes further reason for repealing socialistic health plans.17
What of secondary smoke, true, direct secondary smoke, where the user impacts other parties, not by making them pay for his future (possible) illnesses, but by blowing smoke in their faces and endangering them? Pro-government economists have handled this problem of undeniable invasion under the doctrine of “market failure.”18 In this view, the market has failed, and so government must perforce step into the breach and right matters. The specific failure, here, is secondary smoke: others, nonsmokers, will be victimized by the fumes and made to undergo risk against their will.
The statist response has been to prohibit smoking in certain areas outright (hospitals, public buildings, air flights, schools, etc.), and in other contexts insist that particular areas be cordoned off and reserved for nonsmokers (e.g., compelling special, tobacco-free areas).
What of the other side of this debate? Opponents of this new regime argue that smoking is not at all akin to punching someone in the nose. For one thing, physical aggression has always been recognized as such. Assault and battery have never been legal in any country.19 And yet for most of recorded history, lighting up a butt was never totally proscribed. It is only in these hypersensitive “politically correct” times that this practice has become an issue.
A second argument is that of cause and effect. The present state of scientific medical knowledge establishes no unbroken link between cigarette usage and cancer or emphysema, etc., not for the smokers themselves, still less for second parties. The one is neither a sufficient nor necessary condition for the other. There are those who indulge all their lives and never sicken, while others never so much as touch the “vile weed,” nor live nor work near those who do, and yet succumb. (In contrast, everyone who has his nose punched sustains physical harm.) The most that can be claimed for this etiology is statistical correlation: there is a higher incidence of lung disease amongst users. But similar, merely statistical disparities arise in a plethora of cases.
Then there is the de minimis argument. Even if there is one day found to be a direct invasive harm from this quarter which is not merely statistical, it may well be minimal. That is, it may be akin to the “harm” which emanates from radio waves, low level radioactivity (similar to that caused by bricks, clay, etc.), and the breathing out of carbon dioxide which each of us engages in and without which we would all die.20 The point is that, even if there is a direct harm to other people, for the law to take cognizance of it, it must be “substantial.”
There are some people who are seriously, even fatally harmed by carbon dioxide exhalations, overhead electrical wires, radio waves, etc.; they can safely live only in an oxygen tent. If they venture out, they sustain great damage. If they do, can it reasonably be said that others—smokers, carbon dioxide exhalers (all of us), electricity users, etc., have violated their rights? Must we, in effect, halt civilization in its tracks in order to accommodate these people? Or must they bear the risk of venturing out of their oxygen tents, of “coming to the risk” as it were? Coase, Demsetz, and Posner would advise the court charged with making this decision not to forestall civilization in order to enhance the mobility of these people.21 Why? Because the costs would be too great. After all, there are many more of us than there are of them. True, any one of them might gain more than any one of us might lose, but when a cost benefit analysis is conducted, wealth can be maximized by not giving these people an outdoor oxygen tent, as it were.
The libertarian would concur in this conclusion, but for very different reasons: because normal people have homesteaded the right to engage in just these sorts of everyday activities, that if the invalids venture out of their safe havens, they must do so at their own peril.22
So which is it? Is smoking an invasion or not?
Fortunately, it is not necessary to give an answer to this essentially empirical, scientific and medical question. Thanks to the compromising, ameliorative qualities of private property rights regimes, a compromise between these two bitterly contrasting views is possible.
All that need be done is first to privatize virtually all indoor23 spaces.24 Given such institutional arrangements, the (principled) compromise could proceed.25 Each owner would decide the smoking rules for himself, and then compete with all others on not one but two grounds. First, the old one, provision of a good or service. This would be as before. Second, the competition would take place in terms of how well the smoking rules maximize profits (e.g., satisfy customers.)
For example, health food stores would compete with one another in terms of the quality and price of their vegetables—and their smoking rules. Presumably, they would be led by the “invisible hand”26 to ban smoking outright.
Bars and grills, bowling alleys and pool halls would continue to compete with each other by providing their unique services to the public. They also would do so regarding their smoking rules. In contrast, while a few might specialize in the total prohibition of tobacco, as in the health food industry, most, presumably, would not interfere with lighting up at all. Still other commercial establishments might find it most in their interests to have special smoking times (late evenings? weekends?) or areas. Many hotels feature smoking or nonsmoking rooms. Many restaurants cordon off particular areas where this habit is indulged. All of these different types of establishments have one thing in common: they would all be encouraged by the desire for profit to tailor their smoking rules—as they do everything else—to suit the tastes of their customers. The presumption is that health food consumers would lie at the opposite end of the spectrum from the denizens of pool halls in terms of appreciation for, and tolerance of, tobacco.
There are advantages to the market in this case, as there are in all others. Free enterprise is highly flexible, able to create smoking rules conforming to the desires of virtually all customers. In contrast, governmental “all-or-one” policies are likely to satisfy only the majority.27
The beauty of this market compromise plan is that people can sort themselves out according to their smoking preferences. “Teetotalers” need not venture out into emporia where any vestige of smoking is allowed, even on a part-time basis and confined to a small area. Tobacco users, too, can patronize establishments which welcome and support such choices. As long as indoor cigarette use is not defined as per se invasive,28 this compromise can satisfy far more people than any other alternative.
This libertarian compromise proposal has an additional virtue: it conforms to the “politically correct” appreciation of, and support for, minority cultures.29 As it happens, Orientals in North America have not at all bought into the anti-tobacco tirade. On the contrary30 they are still very much enamored of the practice. In many cities, politically correct leftists have been willing to ban smoking in all private establishments which are “open to the public.” This shows that their hatred for tobacco is stronger than their advocacy of the rights of downtrodden minorities.
*This chapter originally appeared as “Theories of Highway Safety,” Transportation Research Record #912 (1983): 7–10. The author wishes to thank David Kennedy, Anthony Sullivan, and the Trustees of the Earhart Foundation for the financial support necessary to write this article. The opinions expressed herein, of course, reflect the thinking of the author alone.
1Murray N. Rothbard, The Ethics of Liberty (Atlantic Highlands, N.J.: Humanities Press, 1982), pp. 85-96.
2In 1995 the federal government delegated speed regulations to the states.
3See Gilbert Castle, “The 55 MPH Speed Limit: A Cost-Benefit Analysis,” Traffic Engineering 45 (January 1976); L. Egmose and T. Egmose, “Speed Limits Save Lives,” Journal of Traffic Medicine 14 (1986): 4-5; Thomas Forester, Robert F. McNown, and Larry D. Singell, “A Cost Benefit Analysis of the 55 mph Speed Limit,” Southern Economic Journal 50 (January 1984): 631–41; Richard Fowles and Peter D. Loeb, “Speeding, Coordination and the 55-MPH Limit: Comment,” American Economic Review 79, no. 4 (September 1989): 916–21; Philip E. Graves, Dwight R. Lee, and Robert L. Sexton, “Statutes Versus Enforcement: The Case of the Optimal Speed Limit,” American Economic Review 79, no. 4 (September 1989): 932; Ezra Hauer, “Accidents, Overtaking, and Speed Control,” Accident Analysis and Prevention 3 (January 1971); A. Hoskin, “Consequences of Raising the Speed Limit,” Journal of Safety Research 17 (1986): 179–82; James Jondrow, Marianne Bowes, and Robert Levy, “The Optimal Speed Limit,” Economic Inquiry 21 (July 1983): 325–36; Dana Kamerud, “The 55 MPH.Speed Limit: Costs, Benefits and Implied Tradeoffs,” Transportation Research 17A (January 1983): 51–64; Charles Lave, “Speeding, Coordination and the 55-MPH Limit,” American Economic Review 75, no. 5 (September 1985): 1159–64; Sam Peltzman, “The Effects of Automobile Safety Regulation,” Journal of Political Economy 83, no. 4 (1975): 677–725; Paul Sommers, “Drinking Age and the 55 MPH Speed Limit,” Atlantic Economic Journal 13 (March 1985): 43. For a critique, see Walter Block, 1997. “Tobacco Advertising,” International Journal of Value-Based Management 10, no. 3, (May 1997): 221–35; idem, “Theories of Highway Safety,” Transportation Research Record #912 (1983): 7–10.
4Similarly, ownership of a gun is not the same thing as murder, even if there is a positive correction between them.
5For more on this hypothesis, see Lave, “Speeding, Coordination and the 55-MPH Limit.” For a reply, see David T. Levy and Peter Asch “Speeding, Coordination and 55-MPH Limit: Comment,” American Economic Review 79, no. 4 (September 1989): 913–15; Fowles and Loeb, “Speeding, Coordination and the 55-MPH Limit: Comment;” Donald Snyder, “Speeding, Coordination and the 55-MPH Limit: Comment,” American Economic Review 79, no. 4 (September 1989): 922. For a rejoinder to his critics, see Charles Lave, “Speeding, Coordination and the 55-MPH Limit: Reply,” American Economic Review 79, no. 4 (September 1989): 926–36. Also see Nicholas J. Garber and Ravi Gadirau, Speed Variance and Its Influence on Accidents (unpublished manuscript; AAA Foundation for Traffic Safety, Washington, D.C., July 1988).
6For answers to objections that this is impossible, would create chaos, would not work, would be an abomination, or would be akin to Solomon’s decision to cut the baby in half and give each part to two contending mothers, see Walter Block, “Free Market Transportation: Denationalizing the Roads,” Journal of Libertarian Studies 3, no. 2 (Summer 1979); Daniel Klein, “The Voluntary Provision of Public Goods? The Turnpike Companies of Early America,” Economic Inquiry (October): 788–812; Dan Klein, John Majewski, and Christopher Baer, “Economy, Community and the Law: The Turnpike Movement in New York, 1797–1845,” The Journal of Economic History (March 1993): 106–22; idem, “From Trunk to Branch: Toll Roads in New York, 1800–1860,” Essays in Economic and Business History 11 (1993): 191–209; Dan Klein, and G.J. Fielding, “Private Toll Roads: Learning From the Nineteenth Century,” Transportation Quarterly (July 1992): 321–41; “How to Franchise Highways,” Journal of Transport Economics and Policy (May 1993): 113–30; idem, “High Occupancy/Toll Lanes: Phasing in Congestion Pricing a Lane at a Time,” Policy Study 170 (November 1993); Gabriel Roth, The Private Provision of Public Services in Developing Countries (Oxford: Oxford University Press, 1987); Murray N. Rothbard, For a New Liberty (New York: Macmillan, 1973); William C. Wooldridge, Uncle Sam, The Monopoly Man (New Rochelle, N.Y.: Arlington House, 1970).
7Any such procedure, moreover, would encourage “strategic” behavior: each side would have an incentive to exaggerate its real goal, so as to bring the judgment closer in conformity to its own wishes.
8See on this Bruce L. Benson, “Land Use Regulation: A Supply and Demand Analysis of Changing Property Rights,” Journal of Libertarian Studies 5, no. 4 (Fall, 1981); Antony Flew, “Could There Be Universal Natural Rights?” Journal of Libertarian Studies 6, nos. 3/4 (Summer/Fall, 1982): 277–88; Tibor Machan, ed., “Against Nonlibertarian Natural Rights,” Journal of Libertarian Studies 2, no. 3 (Fall, 1978): 233–38; Douglas B. Rasmussen, “A Groundwork for Rights: Man’s Natural End,” Journal of Libertarian Studies 6, no. 1 (Winter, 1980): 65–76.
9Richard Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, Mass.: Harvard University Press, 1985).
10Lysander Spooner, No Treason (Larkspur, Colo.: Pine Tree Press, [1870] 1966).
11If indeed it has one. For support of this contention, see Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). See Epstein, Takings; for a critique see Rothbard, For a New Liberty; Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics and Ethics (Boston: Dordrecht, 1989); idem, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Boston: Kluwer, 1993); David Friedman, The Machinery of Freedom: Guide to a Radical Capitalism, 2nd ed. (La Salle, Ill.: Open Court, 1989); Bruce Benson, “Enforcement of Private Property Rights in Primitive Societies: Law Without Government,” Journal of LibertarianStudies 9, no. 1 (Winter, 1989).
12Sometime issues of this sort can be matter of life or death. Much of the fighting in Belfast, for example, can be traced to the organization of rival parades on the part of the Catholic and Protestants in that city. As a matter of fact, Northern Ireland’s “annual marching season” is the occasion for bitterness between the two rival factions.
13See F.A. Hayek, Law, Legislation and Liberty (Chicago: University of Chicago Press, 1973).
14Even when the federates give over these decisions to the fifty states, the latter are still part of government.
15When is the last time either of these products were in the news as a problem?
16For the libertarian, this is a clear and present violation of free speech rights. For the right to speak freely also implies the right to maintain silence. As to charges of fraud against tobacco companies, as long as they do not claim that cigarettes and cigars are “safe,” they should not be made to bear any of the attendant risks. And this applies even in the absence of such warning, during the time when they were not compulsory. On this see Walter Block, “Coase and Demsetz on Private Property Rights,” Journal of Libertarian Studies 1, no. 2 (Spring, 1977): 111–15.
17This “logic” also applies to eating fatty foods, failing to brush one’s teeth, not getting enough exercise, etc. Taken to its logical conclusion, socialized medicine thus implies a world of Big Brother controlling you for your own good.
18For critics of this view, see Tyler Cowen, ed., The Theory of Market Failure: A Critical Examination (Fairfax, Va.: George Mason University, 1988); Jeffrey Rogers Hummel, “National Goods vs. Public Goods: Defense, Disarmament, and Free Riders,” Review of Austrian Economics 4 (1990): 88–112; Ludwig von Mises, Human Action (Chicago: Regnery, 1966); Murray N. Rothbard, Man, Economy, and State, 2 vols. (Princeton, N.J.: D. Van Nostrand, 1962).
19De jure, that is. De facto, unfortunately, is entirely a different matter. But de jure is itself important. At least it shows an ideal direction for the law, even if it is not always upheld in actual police work or court decisions.
20Murray N. Rothbard, “The Present State of Austrian Economics.” Working Paper from the Ludwig von Mises Institute (November 1992). Reprinted in The Logic of Action One: Method, Money, and the Austrian School (Cheltenham, U.K.: Edward Elgar Publishing, 1997), pp. 111–72. Reprinted in Journal des Economistes et des Etudes Humaines 6, no. 1 (March 1995): 43–89.
21See Ronald Coase, “The Problem of Social Cost,” Journal of Law and Economics 3 (October 1960): 1–44; Harold Demsetz, “Toward a Theory of Property Rights,” American Economic Review 57 (1976): 347–59; idem, “Ethics and Efficiency in Property Rights Systems, in Time,” in Mario Rizzo, ed., Uncertainty and Disequilibrium: Explorations of Austrian Themes (Lexington, Mass.: D.C. Heath, 1979); Richard Posner, Economic Analysis of Law, 3rd ed. (Boston: Little Brown, 1986). For a critique of these three economists in particular, and of their “Law and Economic Philosophy” in general, see Block, “Coase and Demsetz on Private Property Rights”; idem, “Ethics, Efficiency, Coasean Property Rights and Psychic Income: A Reply to Demsetz,” Review of Austrian Economics 8, no. 2 (1995): 61–125; Roy E. Cordato, Welfare Economics and Externalities in an Open Ended Universe: A Modern Austrian Perspective (Boston: Kluwer, 1992); Elisabeth Krecke, “Law and the Market Order: An Austrian Critique of the Economic Analysis of Law,” paper presented at the Ludwig von Mises Institute’s Austrian Scholar Conference, New York City, October 9–11, 1992; Gary North, Tools of Dominion: The Case Laws of Exodus (Tyler, Tx.: Institute for Christian Economics, 1990); idem, The Coase Theorem (Tyler, Texas, Institute for Christian Economics, 1992).
22See John Locke, “An Essay Concerning the True Origin, Extent and End of Civil Government,” Vols. 27–28, in Peter Laslett, ed., Two Treatises of Government (Cambridge: Cambridge University Press, 1960); Rothbard, For a New Liberty; Hoppe, The Economics and Ethics of Private Property.
23No one, even anti-tobacco extremists, allege that smoking is rights violative outdoors. That is why we commonly see corporals’ guards of tobacco adherents engaging in these practices just outside the doors of hospitals, universities office buildings, etc., even in the dead of winter.
24Under libertarian anarchism, the problem is totally solved; there are no public spaces at all, indoor or outdoor; under limited government libertarianism, the problem is not entirely solved, since there would, presumably, be some indoor public space (e.g., devoted to courts, armies and police) but at least the problem would be strictly confined to these few areas.
25In contrast, the “unprincipled” compromise would be to allow all or most or much public property to remain under government control—either outright ownership or regulation—and then, say, take half of it and allow smoking and on the other half not. Or to allow “democracy” to decide where smoking may occur and where not.
26Usually associated with Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (New York: Modern Library, [1776] 1965). However, Murray N. Rothbard, Classical Economics: An Austrian Perspective on the History of Economic Thought (Cheltenham, U.K.: Edward Elgar, 1995), vol. 2, calls into question this linkage.
27If that. When was the last time an election was decided upon this one issue alone?
28Even actual explicit violence cannot be defined as per se invasive. This would allow no scope for adult consensual sado-masochism, nor for boxing, wrestling, judo, karate tournaments, which each participant agrees to enter the ring, knowing that the mutual goal is the infliction of (limited) violence. This applies, as well, to the present case. No one could venture into a privately owned establishment which clearly indicates that smoking is allowed, and then logically object to the practice, no more than could a boxer legally complain about being punched in the ring. For an alternative and in my opinion incorrect view on the “manly sport,” see Gary North, Tools of Dominion: The Case Laws of Exodus (Tyler, Texas: Institute for Christian Economics, 1990), p. 344.
29Obviously, this holds true only for those who value political correctness.
30See for example British Columbia Report 21 (August 1996): 16.
The Privatization of Roads and Highways
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