Full Text of HB4889 103rd General Assembly
HB4889 103RD GENERAL ASSEMBLY | | | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 HB4889 Introduced 2/7/2024, by Rep. Dave Vella SYNOPSIS AS INTRODUCED: | | 720 ILCS 5/11-20.1 | from Ch. 38, par. 11-20.1 |
| Amends the Criminal Code of 2012. Provides that possession of child pornography that does not involve a film, videotape, or other moving depiction is a Class 2 (rather than a Class 3) felony with a mandatory minimum fine of $1,000 and a maximum fine of $100,000. Provides that possession of child pornography that involves a film, videotape, or other moving depiction is a Class 1 (rather than a Class 2) felony with a mandatory minimum fine of $1,000 and a maximum fine of $100,000. Provides that where the child depicted is under the age of 13, the penalty for a first offense of possession of child pornography is a Class 1 (rather than a Class 2) felony with a mandatory minimum fine of $1,000 and a maximum fine of $100,000. Provides that where the child depicted is under 13 years of age, possession of child pornography, where the defendant has previously been convicted under the laws of this State or any other state of the offense of child pornography, aggravated child pornography, aggravated criminal sexual abuse, aggravated criminal sexual assault, predatory criminal sexual assault of a child, or any of the offenses formerly known as rape, deviate sexual assault, indecent liberties with a child, or aggravated indecent liberties with a child where the victim was under the age of 18 years or an offense that is substantially equivalent to those offenses, is guilty of a Class X (rather than a Class 1) felony with a mandatory minimum fine of $1,000 and a maximum fine of $100,000. |
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| | A BILL FOR |
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| 1 | | AN ACT concerning criminal law. | 2 | | Be it enacted by the People of the State of Illinois, | 3 | | represented in the General Assembly: | 4 | | Section 5. The Criminal Code of 2012 is amended by | 5 | | changing Section 11-20.1 as follows: | 6 | | (720 ILCS 5/11-20.1) (from Ch. 38, par. 11-20.1) | 7 | | Sec. 11-20.1. Child pornography. | 8 | | (a) A person commits child pornography who: | 9 | | (1) films, videotapes, photographs, or otherwise | 10 | | depicts or portrays by means of any similar visual medium | 11 | | or reproduction or depicts by computer any child whom he | 12 | | or she knows or reasonably should know to be under the age | 13 | | of 18 or any person with a severe or profound intellectual | 14 | | disability where such child or person with a severe or | 15 | | profound intellectual disability is: | 16 | | (i) actually or by simulation engaged in any act | 17 | | of sexual penetration or sexual conduct with any | 18 | | person or animal; or | 19 | | (ii) actually or by simulation engaged in any act | 20 | | of sexual penetration or sexual conduct involving the | 21 | | sex organs of the child or person with a severe or | 22 | | profound intellectual disability and the mouth, anus, | 23 | | or sex organs of another person or animal; or which |
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| 1 | | involves the mouth, anus or sex organs of the child or | 2 | | person with a severe or profound intellectual | 3 | | disability and the sex organs of another person or | 4 | | animal; or | 5 | | (iii) actually or by simulation engaged in any act | 6 | | of masturbation; or | 7 | | (iv) actually or by simulation portrayed as being | 8 | | the object of, or otherwise engaged in, any act of lewd | 9 | | fondling, touching, or caressing involving another | 10 | | person or animal; or | 11 | | (v) actually or by simulation engaged in any act | 12 | | of excretion or urination within a sexual context; or | 13 | | (vi) actually or by simulation portrayed or | 14 | | depicted as bound, fettered, or subject to sadistic, | 15 | | masochistic, or sadomasochistic abuse in any sexual | 16 | | context; or | 17 | | (vii) depicted or portrayed in any pose, posture | 18 | | or setting involving a lewd exhibition of the | 19 | | unclothed or transparently clothed genitals, pubic | 20 | | area, buttocks, or, if such person is female, a fully | 21 | | or partially developed breast of the child or other | 22 | | person; or | 23 | | (2) with the knowledge of the nature or content | 24 | | thereof, reproduces, disseminates, offers to disseminate, | 25 | | exhibits or possesses with intent to disseminate any film, | 26 | | videotape, photograph or other similar visual reproduction |
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| 1 | | or depiction by computer of any child or person with a | 2 | | severe or profound intellectual disability whom the person | 3 | | knows or reasonably should know to be under the age of 18 | 4 | | or to be a person with a severe or profound intellectual | 5 | | disability, engaged in any activity described in | 6 | | subparagraphs (i) through (vii) of paragraph (1) of this | 7 | | subsection; or | 8 | | (3) with knowledge of the subject matter or theme | 9 | | thereof, produces any stage play, live performance, film, | 10 | | videotape or other similar visual portrayal or depiction | 11 | | by computer which includes a child whom the person knows | 12 | | or reasonably should know to be under the age of 18 or a | 13 | | person with a severe or profound intellectual disability | 14 | | engaged in any activity described in subparagraphs (i) | 15 | | through (vii) of paragraph (1) of this subsection; or | 16 | | (4) solicits, uses, persuades, induces, entices, or | 17 | | coerces any child whom he or she knows or reasonably | 18 | | should know to be under the age of 18 or a person with a | 19 | | severe or profound intellectual disability to appear in | 20 | | any stage play, live presentation, film, videotape, | 21 | | photograph or other similar visual reproduction or | 22 | | depiction by computer in which the child or person with a | 23 | | severe or profound intellectual disability is or will be | 24 | | depicted, actually or by simulation, in any act, pose or | 25 | | setting described in subparagraphs (i) through (vii) of | 26 | | paragraph (1) of this subsection; or |
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| 1 | | (5) is a parent, step-parent, legal guardian or other | 2 | | person having care or custody of a child whom the person | 3 | | knows or reasonably should know to be under the age of 18 | 4 | | or a person with a severe or profound intellectual | 5 | | disability and who knowingly permits, induces, promotes, | 6 | | or arranges for such child or person with a severe or | 7 | | profound intellectual disability to appear in any stage | 8 | | play, live performance, film, videotape, photograph or | 9 | | other similar visual presentation, portrayal or simulation | 10 | | or depiction by computer of any act or activity described | 11 | | in subparagraphs (i) through (vii) of paragraph (1) of | 12 | | this subsection; or | 13 | | (6) with knowledge of the nature or content thereof, | 14 | | possesses any film, videotape, photograph or other similar | 15 | | visual reproduction or depiction by computer of any child | 16 | | or person with a severe or profound intellectual | 17 | | disability whom the person knows or reasonably should know | 18 | | to be under the age of 18 or to be a person with a severe | 19 | | or profound intellectual disability, engaged in any | 20 | | activity described in subparagraphs (i) through (vii) of | 21 | | paragraph (1) of this subsection; or | 22 | | (7) solicits, or knowingly uses, persuades, induces, | 23 | | entices, or coerces, a person to provide a child under the | 24 | | age of 18 or a person with a severe or profound | 25 | | intellectual disability to appear in any videotape, | 26 | | photograph, film, stage play, live presentation, or other |
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| 1 | | similar visual reproduction or depiction by computer in | 2 | | which the child or person with a severe or profound | 3 | | intellectual disability will be depicted, actually or by | 4 | | simulation, in any act, pose, or setting described in | 5 | | subparagraphs (i) through (vii) of paragraph (1) of this | 6 | | subsection. | 7 | | (a-5) The possession of each individual film, videotape, | 8 | | photograph, or other similar visual reproduction or depiction | 9 | | by computer in violation of this Section constitutes a single | 10 | | and separate violation. This subsection (a-5) does not apply | 11 | | to multiple copies of the same film, videotape, photograph, or | 12 | | other similar visual reproduction or depiction by computer | 13 | | that are identical to each other. | 14 | | (b)(1) It shall be an affirmative defense to a charge of | 15 | | child pornography that the defendant reasonably believed, | 16 | | under all of the circumstances, that the child was 18 years of | 17 | | age or older or that the person was not a person with a severe | 18 | | or profound intellectual disability but only where, prior to | 19 | | the act or acts giving rise to a prosecution under this | 20 | | Section, he or she took some affirmative action or made a | 21 | | bonafide inquiry designed to ascertain whether the child was | 22 | | 18 years of age or older or that the person was not a person | 23 | | with a severe or profound intellectual disability and his or | 24 | | her reliance upon the information so obtained was clearly | 25 | | reasonable. | 26 | | (1.5) Telecommunications carriers, commercial mobile |
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| 1 | | service providers, and providers of information services, | 2 | | including, but not limited to, Internet service providers and | 3 | | hosting service providers, are not liable under this Section | 4 | | by virtue of the transmission, storage, or caching of | 5 | | electronic communications or messages of others or by virtue | 6 | | of the provision of other related telecommunications, | 7 | | commercial mobile services, or information services used by | 8 | | others in violation of this Section. | 9 | | (2) (Blank). | 10 | | (3) The charge of child pornography shall not apply to the | 11 | | performance of official duties by law enforcement or | 12 | | prosecuting officers or persons employed by law enforcement or | 13 | | prosecuting agencies, court personnel or attorneys, nor to | 14 | | bonafide treatment or professional education programs | 15 | | conducted by licensed physicians, psychologists or social | 16 | | workers. In any criminal proceeding, any property or material | 17 | | that constitutes child pornography shall remain in the care, | 18 | | custody, and control of either the State or the court. A motion | 19 | | to view the evidence shall comply with subsection (e-5) of | 20 | | this Section. | 21 | | (4) If the defendant possessed more than one of the same | 22 | | film, videotape or visual reproduction or depiction by | 23 | | computer in which child pornography is depicted, then the | 24 | | trier of fact may infer that the defendant possessed such | 25 | | materials with the intent to disseminate them. | 26 | | (5) The charge of child pornography does not apply to a |
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| 1 | | person who does not voluntarily possess a film, videotape, or | 2 | | visual reproduction or depiction by computer in which child | 3 | | pornography is depicted. Possession is voluntary if the | 4 | | defendant knowingly procures or receives a film, videotape, or | 5 | | visual reproduction or depiction for a sufficient time to be | 6 | | able to terminate his or her possession. | 7 | | (6) Any violation of paragraph (1), (2), (3), (4), (5), or | 8 | | (7) of subsection (a) that includes a child engaged in, | 9 | | solicited for, depicted in, or posed in any act of sexual | 10 | | penetration or bound, fettered, or subject to sadistic, | 11 | | masochistic, or sadomasochistic abuse in a sexual context | 12 | | shall be deemed a crime of violence. | 13 | | (c) If the violation does not involve a film, videotape, | 14 | | or other moving depiction, a violation of paragraph (1), (4), | 15 | | (5), or (7) of subsection (a) is a Class 1 felony with a | 16 | | mandatory minimum fine of $2,000 and a maximum fine of | 17 | | $100,000. If the violation involves a film, videotape, or | 18 | | other moving depiction, a violation of paragraph (1), (4), | 19 | | (5), or (7) of subsection (a) is a Class X felony with a | 20 | | mandatory minimum fine of $2,000 and a maximum fine of | 21 | | $100,000. If the violation does not involve a film, videotape, | 22 | | or other moving depiction, a violation of paragraph (3) of | 23 | | subsection (a) is a Class 1 felony with a mandatory minimum | 24 | | fine of $1500 and a maximum fine of $100,000. If the violation | 25 | | involves a film, videotape, or other moving depiction, a | 26 | | violation of paragraph (3) of subsection (a) is a Class X |
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| 1 | | felony with a mandatory minimum fine of $1500 and a maximum | 2 | | fine of $100,000. If the violation does not involve a film, | 3 | | videotape, or other moving depiction, a violation of paragraph | 4 | | (2) of subsection (a) is a Class 1 felony with a mandatory | 5 | | minimum fine of $1000 and a maximum fine of $100,000. If the | 6 | | violation involves a film, videotape, or other moving | 7 | | depiction, a violation of paragraph (2) of subsection (a) is a | 8 | | Class X felony with a mandatory minimum fine of $1000 and a | 9 | | maximum fine of $100,000. If the violation does not involve a | 10 | | film, videotape, or other moving depiction, a violation of | 11 | | paragraph (6) of subsection (a) is a Class 2 3 felony with a | 12 | | mandatory minimum fine of $1,000 $1000 and a maximum fine of | 13 | | $100,000. If the violation involves a film, videotape, or | 14 | | other moving depiction, a violation of paragraph (6) of | 15 | | subsection (a) is a Class 1 2 felony with a mandatory minimum | 16 | | fine of $1,000 $1000 and a maximum fine of $100,000. | 17 | | (c-5) Where the child depicted is under the age of 13, a | 18 | | violation of paragraph (1), (2), (3), (4), (5), or (7) of | 19 | | subsection (a) is a Class X felony with a mandatory minimum | 20 | | fine of $2,000 and a maximum fine of $100,000. Where the child | 21 | | depicted is under the age of 13, a violation of paragraph (6) | 22 | | of subsection (a) is a Class 2 felony with a mandatory minimum | 23 | | fine of $1,000 and a maximum fine of $100,000. Where the child | 24 | | depicted is under the age of 13, a person who commits a | 25 | | violation of paragraph (1), (2), (3), (4), (5), or (7) of | 26 | | subsection (a) where the defendant has previously been |
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| 1 | | convicted under the laws of this State or any other state of | 2 | | the offense of child pornography, aggravated child | 3 | | pornography, aggravated criminal sexual abuse, aggravated | 4 | | criminal sexual assault, predatory criminal sexual assault of | 5 | | a child, or any of the offenses formerly known as rape, deviate | 6 | | sexual assault, indecent liberties with a child, or aggravated | 7 | | indecent liberties with a child where the victim was under the | 8 | | age of 18 years or an offense that is substantially equivalent | 9 | | to those offenses, is guilty of a Class X felony for which the | 10 | | person shall be sentenced to a term of imprisonment of not less | 11 | | than 9 years with a mandatory minimum fine of $2,000 and a | 12 | | maximum fine of $100,000. Where the child depicted is under | 13 | | the age of 13, a person who commits a violation of paragraph | 14 | | (6) of subsection (a) is a Class 1 felony with a mandatory | 15 | | minimum fine of $1,000 and a maximum fine of $100,000. Where | 16 | | the child depicted is under the age of 13, a person who commits | 17 | | a violation of paragraph (6) of subsection (a) where the | 18 | | defendant has previously been convicted under the laws of this | 19 | | State or any other state of the offense of child pornography, | 20 | | aggravated child pornography, aggravated criminal sexual | 21 | | abuse, aggravated criminal sexual assault, predatory criminal | 22 | | sexual assault of a child, or any of the offenses formerly | 23 | | known as rape, deviate sexual assault, indecent liberties with | 24 | | a child, or aggravated indecent liberties with a child where | 25 | | the victim was under the age of 18 years or an offense that is | 26 | | substantially equivalent to those offenses, is guilty of a |
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| 1 | | Class X 1 felony with a mandatory minimum fine of $1,000 and a | 2 | | maximum fine of $100,000. The issue of whether the child | 3 | | depicted is under the age of 13 is an element of the offense to | 4 | | be resolved by the trier of fact. | 5 | | (d) If a person is convicted of a second or subsequent | 6 | | violation of this Section within 10 years of a prior | 7 | | conviction, the court shall order a presentence psychiatric | 8 | | examination of the person. The examiner shall report to the | 9 | | court whether treatment of the person is necessary. | 10 | | (e) Any film, videotape, photograph or other similar | 11 | | visual reproduction or depiction by computer which includes a | 12 | | child under the age of 18 or a person with a severe or profound | 13 | | intellectual disability engaged in any activity described in | 14 | | subparagraphs (i) through (vii) or paragraph 1 of subsection | 15 | | (a), and any material or equipment used or intended for use in | 16 | | photographing, filming, printing, producing, reproducing, | 17 | | manufacturing, projecting, exhibiting, depiction by computer, | 18 | | or disseminating such material shall be seized and forfeited | 19 | | in the manner, method and procedure provided by Section 36-1 | 20 | | of this Code for the seizure and forfeiture of vessels, | 21 | | vehicles and aircraft. | 22 | | In addition, any person convicted under this Section is | 23 | | subject to the property forfeiture provisions set forth in | 24 | | Article 124B of the Code of Criminal Procedure of 1963. | 25 | | (e-5) Upon the conclusion of a case brought under this | 26 | | Section, the court shall seal all evidence depicting a victim |
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| 1 | | or witness that is sexually explicit. The evidence may be | 2 | | unsealed and viewed, on a motion of the party seeking to unseal | 3 | | and view the evidence, only for good cause shown and in the | 4 | | discretion of the court. The motion must expressly set forth | 5 | | the purpose for viewing the material. The State's attorney and | 6 | | the victim, if possible, shall be provided reasonable notice | 7 | | of the hearing on the motion to unseal the evidence. Any person | 8 | | entitled to notice of a hearing under this subsection (e-5) | 9 | | may object to the motion. | 10 | | (f) Definitions. For the purposes of this Section: | 11 | | (1) "Disseminate" means (i) to sell, distribute, | 12 | | exchange or transfer possession, whether with or without | 13 | | consideration or (ii) to make a depiction by computer | 14 | | available for distribution or downloading through the | 15 | | facilities of any telecommunications network or through | 16 | | any other means of transferring computer programs or data | 17 | | to a computer. | 18 | | (2) "Produce" means to direct, promote, advertise, | 19 | | publish, manufacture, issue, present or show. | 20 | | (3) "Reproduce" means to make a duplication or copy. | 21 | | (4) "Depict by computer" means to generate or create, | 22 | | or cause to be created or generated, a computer program or | 23 | | data that, after being processed by a computer either | 24 | | alone or in conjunction with one or more computer | 25 | | programs, results in a visual depiction on a computer | 26 | | monitor, screen, or display. |
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| 1 | | (5) "Depiction by computer" means a computer program | 2 | | or data that, after being processed by a computer either | 3 | | alone or in conjunction with one or more computer | 4 | | programs, results in a visual depiction on a computer | 5 | | monitor, screen, or display. | 6 | | (6) "Computer", "computer program", and "data" have | 7 | | the meanings ascribed to them in Section 17.05 of this | 8 | | Code. | 9 | | (7) For the purposes of this Section, "child | 10 | | pornography" includes a film, videotape, photograph, or | 11 | | other similar visual medium or reproduction or depiction | 12 | | by computer that is, or appears to be, that of a person, | 13 | | either in part, or in total, under the age of 18 or a | 14 | | person with a severe or profound intellectual disability, | 15 | | regardless of the method by which the film, videotape, | 16 | | photograph, or other similar visual medium or reproduction | 17 | | or depiction by computer is created, adopted, or modified | 18 | | to appear as such. "Child pornography" also includes a | 19 | | film, videotape, photograph, or other similar visual | 20 | | medium or reproduction or depiction by computer that is | 21 | | advertised, promoted, presented, described, or distributed | 22 | | in such a manner that conveys the impression that the | 23 | | film, videotape, photograph, or other similar visual | 24 | | medium or reproduction or depiction by computer is of a | 25 | | person under the age of 18 or a person with a severe or | 26 | | profound intellectual disability. |
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| 1 | | (g) Re-enactment; findings; purposes. | 2 | | (1) The General Assembly finds and declares that: | 3 | | (i) Section 50-5 of Public Act 88-680, effective | 4 | | January 1, 1995, contained provisions amending the | 5 | | child pornography statute, Section 11-20.1 of the | 6 | | Criminal Code of 1961. Section 50-5 also contained | 7 | | other provisions. | 8 | | (ii) In addition, Public Act 88-680 was entitled | 9 | | "AN ACT to create a Safe Neighborhoods Law". (A) | 10 | | Article 5 was entitled JUVENILE JUSTICE and amended | 11 | | the Juvenile Court Act of 1987. (B) Article 15 was | 12 | | entitled GANGS and amended various provisions of the | 13 | | Criminal Code of 1961 and the Unified Code of | 14 | | Corrections. (C) Article 20 was entitled ALCOHOL ABUSE | 15 | | and amended various provisions of the Illinois Vehicle | 16 | | Code. (D) Article 25 was entitled DRUG ABUSE and | 17 | | amended the Cannabis Control Act and the Illinois | 18 | | Controlled Substances Act. (E) Article 30 was entitled | 19 | | FIREARMS and amended the Criminal Code of 1961 and the | 20 | | Code of Criminal Procedure of 1963. (F) Article 35 | 21 | | amended the Criminal Code of 1961, the Rights of Crime | 22 | | Victims and Witnesses Act, and the Unified Code of | 23 | | Corrections. (G) Article 40 amended the Criminal Code | 24 | | of 1961 to increase the penalty for compelling | 25 | | organization membership of persons. (H) Article 45 | 26 | | created the Secure Residential Youth Care Facility |
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| 1 | | Licensing Act and amended the State Finance Act, the | 2 | | Juvenile Court Act of 1987, the Unified Code of | 3 | | Corrections, and the Private Correctional Facility | 4 | | Moratorium Act. (I) Article 50 amended the WIC Vendor | 5 | | Management Act, the Firearm Owners Identification Card | 6 | | Act, the Juvenile Court Act of 1987, the Criminal Code | 7 | | of 1961, the Wrongs to Children Act, and the Unified | 8 | | Code of Corrections. | 9 | | (iii) On September 22, 1998, the Third District | 10 | | Appellate Court in People v. Dainty, 701 N.E. 2d 118, | 11 | | ruled that Public Act 88-680 violates the single | 12 | | subject clause of the Illinois Constitution (Article | 13 | | IV, Section 8 (d)) and was unconstitutional in its | 14 | | entirety. As of the time this amendatory Act of 1999 | 15 | | was prepared, People v. Dainty was still subject to | 16 | | appeal. | 17 | | (iv) Child pornography is a vital concern to the | 18 | | people of this State and the validity of future | 19 | | prosecutions under the child pornography statute of | 20 | | the Criminal Code of 1961 is in grave doubt. | 21 | | (2) It is the purpose of this amendatory Act of 1999 to | 22 | | prevent or minimize any problems relating to prosecutions | 23 | | for child pornography that may result from challenges to | 24 | | the constitutional validity of Public Act 88-680 by | 25 | | re-enacting the Section relating to child pornography that | 26 | | was included in Public Act 88-680. |
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| 1 | | (3) This amendatory Act of 1999 re-enacts Section | 2 | | 11-20.1 of the Criminal Code of 1961, as it has been | 3 | | amended. This re-enactment is intended to remove any | 4 | | question as to the validity or content of that Section; it | 5 | | is not intended to supersede any other Public Act that | 6 | | amends the text of the Section as set forth in this | 7 | | amendatory Act of 1999. The material is shown as existing | 8 | | text (i.e., without underscoring) because, as of the time | 9 | | this amendatory Act of 1999 was prepared, People v. Dainty | 10 | | was subject to appeal to the Illinois Supreme Court. | 11 | | (4) The re-enactment by this amendatory Act of 1999 of | 12 | | Section 11-20.1 of the Criminal Code of 1961 relating to | 13 | | child pornography that was amended by Public Act 88-680 is | 14 | | not intended, and shall not be construed, to imply that | 15 | | Public Act 88-680 is invalid or to limit or impair any | 16 | | legal argument concerning whether those provisions were | 17 | | substantially re-enacted by other Public Acts. | 18 | | (Source: P.A. 101-87, eff. 1-1-20; 102-567, eff. 1-1-22 .) |
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