Presumed Guilty: The Logic of Lockdown

Author’s Note: Today is the two year anniversary of the beginning of the UK’s first ever Lockdown. In this essay, I explain why all arguments for Lockdown fail irrespective of the severity of a viral or bacterial outbreak. Additionally, I show how a principled opposition to Lockdown does not necessarily imply opposition to the entire corpus of health and safety laws prior to 2020. 

Innocent until proven guilty is one of the core principles of a just legal order – it is better that a guilty man go free, than an innocent man suffer a criminal penalty. Yet, the logic of lockdown is precisely that: since most people are potentially a Coronavirus bioweapon, we must assume they are explosive spreaders and thus forcibly quarantine them. Lockdown is a quarantine of the healthy, not of the sick.

On the other hand, if you were clearly demonstrating unique symptoms of a new Black Death which you were likely to transmit, then in principle it could be reasonable to forcibly quarantine you within your own home. This would be analogous to a probable cause test to arrest someone suspected of committing a crime. One could claim that by licking an ice-cream on a park bench you are providing evidence of breaking lockdown laws, but this misses the point that the justification of the laws themselves presupposes that you are a bioweapon without justification.

What, however, constitutes a lockdown? It is clearly a sliding scale: children in England could exercise outside during the original strongest UK lockdown beginning on 24th March 2020, whereas in Spain they were literally confined in their houses for six weeks.[i] I will define a set of policies as a lockdown if they hit the following minimal criteria – despite the fact there is no direct evidence that anyone is infected with a communicable disease, physical shops are forced to close and there are restrictions on normal gatherings of friends and family.

I do not include border closures within my conception of lockdowns since the current law regularly distinguishes between members of different political communities and treats them differently; an obvious example would be visa requirements for some non-citizens.[ii]

Current Types of UK Law

There are broadly four types of legal offences in the UK[iii]:

Crimes – where you intend harm (mens rea– the guilty mind) and cause harm: beheading your noisy neighbour.

Attempted crimes – where you intend harm but fail:  shooting your mother-in-law but hitting the doily instead.

Torts – you don’t intend harm but cause it: disposing of hazardous waste in a river.

Negligence – you neither cause harm nor intend to but there is a significant probability that your actions, or lack thereof, would have caused harm: not installing a rail on a balcony.

Why Health and Safety Laws Do Not Justify Lockdown

Lockdown restrictions are the closest to laws against negligence and such are effectively health and safety laws.[iv]  Yet, they are in fact categorically different from them: the reason is that the actions mandated or prohibited in health and safety laws are inherently dangerous in some way. Why is there a law to cover over a circular saw?[v] Because when it spins round at 3000 RPM it could cause serious injury. We know this because we know the nature of circular saws. Yet, it does not follow from the knowledge of general human anatomy that humans per se pose an analogous danger: for instance, general human interaction, such as meeting with friends and family, does not typically cause such a threat.

One could argue that regulations pertaining to the safe storage of food in restaurants are designed to prevent potential harm even though it is not the nature of a kebab to cause food poisoning. However such reasoning cannot fully justify the law since a consistent application would imply that such regulations should apply to domestic households (including being subject to regular inspection). This difference in law is best explained by asymmetric information[vi]:  the assumption is that the patrons will have significantly less information about the way that food is prepared than the restaurant staff so customers need protecting from unscrupulous firms who put their profit ahead of their diners’ well being. On the other hand, a friend’s birthday home-cooked supper likely has the goal of fun and enhanced friendship so it would lack similar levels and types of asymmetric information. Therefore prohibiting family gatherings of multiple households cannot be justified by typical health and safety laws.

Where does the desert begin? Essential vs Non-Essential Activities

Forcible closure of businesses during lockdown cannot be justified by the potential harm + asymmetric information principle since the assumption is that every single firm engaging in physical business poses a sufficient risk and must be closed. Now clearly this cannot be implemented consistently since otherwise households would starve because no one could go out or even deliver any food.[vii] Lockdown must therefore rely on a novel distinction for public health between essential and non-essential businesses – if it didn’t, there would be no way of determining that a supermarket should remain open and that the board game store close because you could well be equally close to potential human bioweapons in each case. The obvious problem here is how to define essential, and essential for whom? Unless you have large levels of savings or assets, regular income from your employment is essential for you to buy food and pay rent. Yet, consumers regularly distinguish between essential and non-essential items which is clearly seen when a household begins budgeting. Nevertheless, such a judgement is contextual and dependent on the particular needs of a household. It is not possible to know a priori what is essential and non-essential. The closure of the swimming pools may have looked like a sensible closure of non-essential leisure activities yet it prevented some people from their major source of fitness. An elderly man cited by Peter Hitchens can no longer swim because his muscles atrophied due to the lack of use during lockdown.[viii] Obviously, this man would have chosen to spend his money on continuing swimming and considered it essential. Now you could well argue that should have been foreseen and is just a badly imposed lockdown. The problem is it can’t always be foreseen since there are almost a limitless number of ways people can exercise, so listing all of them in advance is a practical impossibility.  Some, mostly elderly people, engage in physical exercise by gardening so the closure of garden centres will interfere with this since they are restricted from purchasing the tools to do so. Yet one could always claim that people should change their behaviour given the restrictions and find other ways to exercise, although the individuals in question may only realise how much exercise they did gardening in retrospect before it was too late.  That said, one could also argue that for a short time period even exercise is non-essential. All that is needed is that for bare survival – adequate food, clothing, shelter and water. Therefore only services directed to the production of these goods should be considered properly essential.[ix] Such a view is naive as it fails to comprehend the complexity and interrelatedness of modern economies. 

A baker has to source his flour and yeast. The flour needs to be harvested by a combine, then ground by machine and delivered to the bakery. The baker then uses an oven along with yeast to bake the bread. So just in baking bread we need to consider the maintenance and running of the trucks, ovens and combines.  Suppose non-essential vehicle servicing was prohibited, it may be the case it is no longer profitable for a garage to open,meaning they can no longer fix the broken truck. Any restrictions in the structure of production can have significant unforeseen consequences because you do not have the information of the individual on the ground, so predicting his response on a macro level is very, very difficult, potentially undermining the provision of the essential services.

Clearly, however, one could temporarily nationalise any firm so any work deemed essential is undertaken. Yet this goes far beyond a lockdown and moves rather towards a planned economy similar to that of North Korea. Yet, if you advocate this merely as a temporary measure, the essential and non-essential distinction need only be relevant for governmental policy in an emergency. The adoption of such a policy thus actually depends on the expected costs of a temporary planned economy with the expected benefits of overcoming the emergency – essentially cost-benefit analysis: a process where the expected benefits and costs of a policy are given a monetary value. If the expected yield is a net positive then the policy should be green lighted, but a net negative should be hurled into the outer darkness.

Yet, one could avoid outcome based cost-benefit analysis and make the argument that if there is a specific outbreak of a serious infectious disease in a village it is perfectly reasonable to quarantine the entire village even if some of the inhabitants do not display symptoms since it is likely they will develop them due to their proximity the demonstrably ill. But again, one would need evidence of such an outbreak in a specific location to justify this – you can’t just assume, as current lockdowns have, that individual households have their own mini-outbreak within their own home so need to be physically distanced[x] from all other households. Further, even if you could quarantine the village it would not justify the illegality of basic social interaction within the village since the purpose of the more general quarantine is to prevent it from spreading outside the village. Thus, the only potential option to justify lockdown restrictions outside cost-benefit analysis is the precautionary principle.

The Precautionary Principle, or the Insanity of Nassim Taleb

The Precautionary Principle’s essential wisdom is “look before you leap”.  Make sure you are fully aware of the dangers of an action, not only the potential benefits: look both ways before crossing the road – meeting your friend across the road has a minimal benefit in comparison to the cost of being run over by a bus. As such, it is essentially a form of cost-benefit analysis where one places sufficient weight on the costs.

Nassim Taleb, however, claims his Non-Naive Precautionary Principle is not a species of cost-benefit analysis. [xi] The principle is as follows – if something could cause systemic ruin of the entire system then we should use as many resources as possible to prevent any chance of it occurring. Crucial to this is Taleb’s distinction between harm and ruin. You can recover harm but not ruin. The gambler who loses all of his money cannot mitigate his losses as he has nothing with which to gamble any more. Taleb does note, however, that this is an example of bounded ruin, as the gambler could work again to increase his cash balance. The only ruin risk is death, since you cannot recover from it. However for Taleb, risking the ruin of one’s life, for example by free climbing, is non-problematic since the death would not affect the functioning of the entire system. For Taleb, only the chance of systemic ruin, rather than local ruin, requires top down action; this is because ruin for the entire global system would mean the death of humanity itself and the more times that you chance systemic ruin, the higher the probability that ruin occurs, eventually tending to 1. Therefore, when facing a virus of unknown severity then one should treat it as if it will be the one that could induce global ruin. Taleb’s general solution here is for quarantines even for the healthy. He points to places like Milan in the Middle Ages being relatively less damaged by the Black Death due to its relatively stringent quarantine measures.

The problem with Taleb’s view is that the probability of global ruin is not eventually 1. The reason is that the probability will only become 1 when you run the risk a countably infinite number of times, but you can’t run a risk a countably infinite number of times. Infinity is never ending and thus can never be completed and thus counted. The probability of global ruin may be so small that one never traverses enough time to make the expected value of ruin become 1. Thus, whether global ruin will take place depends on the specific probability of each new event rather than it being a member of Taleb’s potential global ruin class.  Thus his claim that the Non-Naive Precautionary Principle is not a form of cost-benefit analysis is false.

Now let’s suppose though that Taleb is correct about the probability of ruin eventually becoming 1, it is not as obvious as he claims that this merits a different type of response than for local ruin risk. This is because it matters how long it would take global ruin to kick in. The heat death of the universe is estimated to occur within 1-100 trillion years.[xii] Thus, global ruin will likely happen whether we like it or not assuming no divine event. So if global ruin takes place a hundred years earlier because there was no top down global ruin risk management, how bad is this? That of course will depend on the costs and benefits of the response to prevent the practical risk of global ruin. Therefore, contra Taleb, the non-naive precautionary principle, despite wearing all black, sunglasses and a mask is in fact none other than standard cost-benefit analysis in disguise. Thus the only argument for lockdown is a cost-benefit analysis with heavy weight given to the potential costs to show it is preferable to non-lockdown.

Is it worth “Flattening the Curve”?

The best argument for lockdown is the “flatten the curve” argument: in the early stages of a pandemic the infection rate will become exponential without lockdown restrictions which will cause a huge spike in hospitalisations meaning that there will be too few beds for patients, meaning some will die who would have survived if hospitalisations were more smoothly distributed.

Supposing lockdowns achieve this goal[xiii], and there are many reasons to suspect they do not, it does not follow that the policy is warranted. Firstly, extension of life[xiv]per se is clearly not always the best option. Suppose an eighty year old man has terminal cancer such that it was likely he would die within a year but would live a normal life until he died in his sleep – would it be a wise for him to ingest a drug gifted to him that keeps him alive for an extra five years? Well, that depends on the overall effects of the drug. If he were bed ridden all that time and in constant pain, it would clearly not be wise. Further, suppose the drug now costs £1000 a month for the next five years, making the total cost £60,000. Purchasing this would come at a huge opportunity cost: it will reduce his children’s inheritance thereby making it harder for them to join the housing ladder and thus diminish the quality of the environment for them to raise his grandchildren. On the other hand if the drug is relatively inexpensive and keeps him alive for just a year in just good enough health to attend his granddaughter’s wedding the drug may well be worth taking. In reality, such a drug will fall somewhere in the middle of these cases and deciding whether to take and/or pay for such a drug will require a lot of practical wisdom.

So in the individual case it can be difficult to tell whether or not the costs outweigh the benefits. In the case of lockdown we have the benefits of life extension of potentially many people versus: missed cancer diagnoses, the isolation of the elderly, businesses in financial ruin[xv]and the regression of children’s socialisation and education, amongst a plethora of other things. The problem is there is no way to calculate the benefits or the costs of lockdown from a centrally planned vantage point. There are no homogenous units of happiness, utils, to weigh up on one side or the other to decide what to do. But let’s suppose there were utils, collecting accurate data is practically impossible. How much value do you place on visiting your parents on a regular basis? Well you clearly prefer it to the other activities you could possibly perform at that time period but in absolute terms how much you value it is unclear. Using money as a proxy for utils, you could ask me how much you could pay me to not to visit my parents for three months. The problem is that the question is highly dependent – do their young grandchildren live with me, are they terminally ill, when did I last see them? I could probably ordinally rank the payment required in the different circumstances but assigning a ballpark figure in each would essentially be guesswork.

One could argue that instead of using survey data one could just observe what people actually do and infer their utility, for example by measuring spending patterns. One of the many problems with this is that some of the most valuable activities do not involve payment: for example playing with your young children. Another option could be advanced technology that could observe brain states and thus be able to objectively assess value. The problem is how does one jump from a brain state to the value it represents? You would probably need to record the entirety of someone’s day on camera whilst monitoring their brain states to generate detailed correlations. I also suspect you will have a problem of actions which feel bad but are ultimately right: testifying against a friend during a murder trial. Therefore assessing the costs and benefits of lockdown in any rigorous scientific manner is a Sisyphean task.

Individuals’ choices are Less Wrong than Bureaucrats

Now you could respond that the arguments heretofore render even the simplest human action irrational. Yet, this presupposes that the only intelligible way of determining your own actions is strictly one of cost-benefit[xvi], but leaving that argument aside, the charge does not hold for two reasons. Firstly, you generally have access to sufficient knowledge: you are aware of contingent circumstances and what your overall goals are, such that the means to achieve your end are intelligible in that context. You can generally look back on your choices and say whether or not they succeeded in achieving your goals.

Secondly, you generally bear the costs of your actions in a direct sense: investing in Enron just prior to their collapse would cause you huge losses. Consequently, your decisions are given significance because they can harm you in a relevantly weightier manner than the choices of a bureaucrat: whether unemployment rises or death rates rise is effectively irrelevant to him personally since at worst he could lose his job, and even then that is highly unlikely.  Further, if he does have some skin in the game, for example, he has an elderly relative with hypertension (most of the early Italian Coronavrius deaths with, not necessarily from, Coronavirus, had hypertension) the problem is he can’t feel the weight of the economy tanking in the same way as the aggregation of the individuals affected by it. Decisions whose benefits and/or costs accrue proportionally to the individual making them are likely to be, on net, better decisions. The Whitehall bureaucrat has the benefit of his elderly relative living longer but not the costs of enforced social isolation or forced closure of businesses.

Therefore decisions ought to reside with individuals and families since they have skin in the game and possess the best information. They should assess their own risks and behave accordingly in the face of Coronavirus or other transmissible disease. If you are elderly and in poor health you will probably decide to limit the number of people you see. On the other hand if you are a fit septuagenarian, you will probably prefer to cherish the time with your young grandchildren at Christmas and take the risk of Coronavirus causing you serious harm. Similarly, most under 50s would risk catching the virus so they could continue to work.

What if the virus caused a Zombie Apocalypse?

One could argue that the lockdown is not attempting to maximise the welfare of individual households but that of the political community itself which constitutes a social object distinct from households and firms.[xvii] For example, the political community is the body and the households its organs. The human body performs the ordering function of the organs themselves which keeps both the body and organs working. Yet the only situation where the individual households’ interests would severely diverge with that of the political community as a whole is if such actions cause a widespread breakdown of law and order. Now clearly if enough people died, societal order could break down, post-apocalyptic fiction exists for a reason; however, if the outbreak was so virulent and transmissible then lockdowns would make barely any difference to the death rate. Further, lockdowns actually significantly harm the political community as a whole due to the impact on the young. Children are denied healthy social interactions with friends and family; they grow up in a culture of anxiety where danger lies behind every mask. Late teens and twenties miss out on meeting potential spouses. The marriage age becomes even later and thus increases the likelihood of an even lower birth rate. These can have ramifications in the future which must be taken into consideration. 

The Property Rights Solution

All the arguments presented notwithstanding,  some businesses may voluntarily introduce restrictions intended to increase customer confidence, such as spacing tables further apart and reducing capacity. On the other hand, if they think their customers don’t particularly care about catching it, they would rather risk it so they can operate at normal capacity. What they choose is effectively irrelevant, the key is that the decisions made lead to genuine costs and genuine benefits borne by the individuals in question. Therefore when there is clear private property ownership the problem can be ultimately mitigated by the right of exclusion: this equally applies to households and firms. Further, allowing firms to pursue different policies would allow many real world tests for what is the best policy to reduce the spread of a virus. You could pay people to take regular tests and have some participants voluntarily limit their activity to particular “Covid Secure” establishments and not meet with friends indoors whereas the rest of the sample carried on as normal. Then one could compare infection rates to see whether the measures made any difference. If so one could use a similar method to measure the effect of specific policies such as leaving windows open or having them closed. Rather than dictating a central policy which is dependent on computer modelling you would have many real world tests to compare to evaluate which method is in fact the best way of mitigating spread.

Suppose, however, that there is in fact one optimal method, we have a coordination problem. Ideally if all firms could agree, they would all invoke the most stringent practices in their shops, even voluntarily close and operate purely online to reduce the number of people entering the store “to stop the spread”. Yet, it could be more profitable for an individual firm to break the agreement to increase sales, thus the probability that the agreement would be kept is minimal so the optimal solution is missed. Whilst this is possibly true, legally forcing firms to adopt a single set of policies succumbs to the same problems of cost-benefit analysis discussed above.

Whilst one shop’s policy impacts another it still does not follow that the efforts of other stores are entirely in vain. People who only frequented the more stringent shops would have their probability of catching the virus reduced (I am assuming that being more “stringent” actually works, which of course it might not). Now this may not be the optimal solution to reducing infections but it can still make a difference. Clearly, in the case of an outbreak which caused a high number of deaths of those one would not otherwise expect to die in the near future, the consumer demand for such stringency would be much higher.

What about coughing on the street?

What policies should exist on public thoroughfares or public parks where there is no clearly defined property owner(s) to set the rules?[xviii]

If someone deliberately coughed in your face this could clearly be considered criminal as could the attempt to do so. However, the point with viruses is that it might not just harm the cough victim but that the victim may accidentally pass it on to others who also use the public thoroughfare. Thus we need an assessment of exactly what the original infector causes. Consequently, we need to take into account torts or negligence offences as our main point of analysis – when can someone be held liable for their non-deliberate harms/ potential harms?

The first thing to note is background risk exists for any traversal on a public thoroughfare or public land. Before Coronavirus, people would implicitly accept the risk of catching normal colds or seasonal flu whilst walking on public land or using public transport (clearly owners of trains and buses could introduce their own restrictions). Now you could claim that this should never have been the case and if the infector could be identified he should be held liable. That said, this could be judged as a ‘coming to the nuisance’ response. Suppose you started to walk a different route to work for the first time but veterans of this route regularly coughed and sneezed, you couldn’t reasonably complain about this background risk. It would be like buying a cheap house next to Heathrow airport and suing them for noise pollution. 

There is also the question of how likely you are to catch a virus in a public space – the general principle legally speaking seems to be that if you catch a cold from someone else they aren’t liable. This would clearly be justifiable if they were asymptomatic since they would have no idea that they could infect anyone. Supposing though you had a cold but didn’t deliberately infect anyone, this would tend just to be treated as a natural evil to be dealt with like a lightning strike. Now suppose though you reject the reasonable man defence, the point is that you would need to actually cause someone else harm for an offence to occur.

Now whether people should be liable for infecting others with Coronavirus is a question for the courts based upon actual infections, not potential infections. Providing a framework for individuals, families and businesses to use their local information relevant to their pursuit of the good will lead to a rational allocation on the macro level.

That said, the government currently regulates potential harms on public roads in the form of driving licenses and drink-driving laws. It is similar to the circular saw restriction – we know a person who consumes a particular level of alcohol will have their driving skills significantly impeded, thereby becoming a live an active threat. Even though the police can currently stop any driver without any evidence of erratic driving and subject them to a breathalyser test, all this could justify with respect to a disease outbreak is for the police to randomly stop people and subject them to a rapid test: if positive they would be sent home, if negative they could continue with their business.

Driving licenses are best defended on the grounds of asymmetric information and controlling a naturally dangerous vehicle: without licensing you could be unaware that you are sharing the road with someone with seriously deficient driving skills who could endanger your person and property – clearly, walking does not pose similar risks.  It is noteworthy that licences are not required on private land as the assumption is that you have agreed to associate with everyone there which is not the case on a public road where no-one is really excluded save by licensing.

Conclusion

In conclusion, it is clear that the only way one can justify lockdowns is by assuming the entire population is a live and active threat without direct evidence. One must assume they are guilty until proven innocent. This is an entire inversion of Western legal principles and of justice itself. Allowing the guilty to go free can be an act of mercy. There can never be virtue in punishing the innocent. This would even be the case if the virus was significantly more virulent than Coronavirus and was on a par with the Black Death. Even if it was, people would act differently because the probability of serious illness or death would be significantly higher. The only institution that should be locked-down is the State  – arrest high-level government functionaries and confine them to their swanky houses so they can at last leave us alone. 


[i]https://www.bbc.co.uk/news/world-europe-52409407 accessed 10/03/21

[ii]Whether a border closure is prudent action is another question. Of course, if you denied that citizens and non-citizens should be treated differently even closing the border would be illegitimate. Either way, the restriction of outward bound travel clearly is unjustifiable because whether a foreign political community allows you entry, is their prerogative and theirs alone. That said of course, a political community could always prevent their citizen from returning.

[iii] Whether they are labelled this way by the current legal system isn’t the point: it is a reasonable categorisation of existing law.

[iv] I am not implicitly endorsing negligence laws in this essay but showing why the reasoning underlying them does not justify lockdown.

[v] I imagine there is but it doesn’t matter if in this case that is false.

[vi] Another potential reason might be monopoly power. Due to the lack of competition in a market a firm may raise their prices or reduce their quality relative to what they would in a competitive market to maximise profits. So it could be argued that regulation provides performance targets analogous to what more competitive pressure would achieve. Yet, since the food safety laws apply to firms both large and small irrespective of the number of local competitors, monopoly power per se doesn’t justify the present regulatory regime. Asymmetric information also best explains the licensing of doctors, plumbers and lawyers: this is justified on the basis to prevent consumers being exploited by people who claim they can perform a service to a high standard but can’t.

[vii] Assuming of course we had not reverted back to self-sufficient farming

[viii]https://youtu.be/yjTk4djCveY?t=1730 accessed 28/12/21

[ix] This of course omits arguments that the receiving of the sacraments, hearing the gospel etc are also in fact essential in a similar way to food because they are required to either obtain the afterlife or at least prevent eternal conscious torment in such an afterlife.

[x] Hat tip to Bob Murphy

[xi] Nassim Nicholas Taleb, Rupert Read, Raphael Douady, Joseph Norman, and Yaneer Bar-Yam, The precautionary principle (with application to the genetic modification of organisms), arXiv:1410.5787 (October 17, 2014).

[xii] https://phys.org/news/2015-09-fate-universeheat-death-big-rip.html#:~:text=Somewhat%20more%20pressing%20is%20the,gas%20needed%20will%20be%20exhausted. Accessed 28/12/21.  It is even extremely unlikely that humanity could survive the absorption of the earth into the sun which is estimated at 7.5bn years. https://en.wikipedia.org/wiki/Future_of_Earth#:~:text=Four%20billion%20years%20from%20now,the%20Earth%20will%20be%20extinct. Accessed 08/03/21. This of course depends on your view of whether interstellar travel is possible; nevertheless the question as to when global ruin would likely occur does matter. Clearly if you think humanity could survive the heat death of the universe, global ruin caused by a viral outbreak still does not have a probability of 1 for reasons outlined earlier.

[xiii] Although if there was a smoother utilisation of hospital capacity following a lockdown it is not obvious to what extent this was caused by the lockdown. 

[xiv] Strictly speaking you cannot save lives, merely extend them, since death is still inevitable. Life after death is another matter but embodied human existence clearly ends for everyone at some point.

[xv] Even if you claim the government can bail them out the money has to come from somewhere. It must either be taxed or printed. Both just redistribute wealth rather than increase it.

[xvi] David Oderberg argues that one can rank reasons apart from their consequences so that there can be reasons and not just outcome based decision making. Oderberg, David. Doctrine of Double Effect inT. O’Connor & C. Sandis (eds.), A Companion to the Philosophy of Action. pp. 324-330 (2010)

[xvii] This is the disease version of a wartime national emergency; however there is one clear difference: in the latter case, the foreign actor has demonstrated it is an enemy by attacking the community whereas in the case of a lockdowns, you have to assume everyone within the community is a potential enemy. So whilst it may be justifiable to use any means necessary to repel a foreign invader you actually have to know he is an invader.

[xviii] Whether “public property” is justifiable is another question but the overriding question is how to best deal with such arenas given that they exist.

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