Regulating Financial Services in the Marketspace:
The Public's Interests
Roger Clarke

Principal, Xamax Consultancy Pty Ltd, Canberra

Visiting Fellow, Department of Computer Science, Australian National University

Version of 23 January 1997

© Xamax Consultancy Pty Ltd, 1997

Invited Address to the Conference of the Australian Securities Commission Conference on 'Electronic Commerce: Regulating Financial Services in the Marketspace', The Wentworth Hotel, Sydney, 4-5 February 1997

This paper is at

A later version, revised to take account of later considerations including the outcomes of the Conference itself, is at


This paper is written from the viewpoint of the general public, and in particular of the individuals that make up that public. Whatever regulators and the corporations that they regulate may think, the existing regulatory regime for financial services is far from adequate. The impacts of recent and near-future changes in industry structure and in technology appear likely to result in further harm to individuals' interests.

After defining the scope of the topic, the paper examines the interests of individual consumers and investors, and identifies many specific weaknesses in the current regulatory regime. It then considers some additional concerns that arise in the emergent virtual marketspace. Finally, it makes some suggestions about strategies that might be adopted, if the public's interests in financial services in the new era of electronically mediated communications are to be protected.



Financial Services

Electronic Commerce

The Marketspace

The Public's Interests

New Concerns

Regulatory Strategies



The spur for this paper was an invitation to address the Australian Securities Commission's conference on 'Regulating Financial Services in the Marketspace'. The invitation was to consider the social impacts of the new technologies, and hence provide the public's perspective on the social impacts and policy issues involved.

This paper is intentionally rather different in its orientation and flavour from the orthodoxy that the author confidently anticipates will be shown by the majority of the invited speakers. In particular, it expressly avoids comfortable macro-analyses of 'the public interest' in such matters as the health of securities exchanges and the need for corporations to have access to additional capital injections with a minimum of fuss.

Rather, it seeks out 'the public's interests'. It approaches the current and near-future regulatory environment from the viewpoint of individual members of the public, in their various roles, but particularly as consumers and as investors.

The paper commences by examining each of the concepts that underlie the conference theme, i.e. 'financial services', 'electronic commerce' and 'the marketspace'.

It then considers the interests that the public has that may require protection, including a frank assessment of existing inadequacies in the nature, performance and regulation of financial services.

Attention is then turned to new areas of concern that arise from contemporary and near-future telecommunications-based services, and to strategies that are available to address the existing and emergent concerns.

Financial Services

Although the title of the Conference is expressed in a quite general manner, the programme is actually fairly tightly focussed on 'financial services'. This first section briefly discusses what the author understands that term to mean.

Interpreted in its narrowest possible sense, 'financial services' provide the means whereby individuals and corporations effect payments. Given the maturity of payments systems, however, many additional services tend to be closely associated with payments, especially the management of cash deposits, together with indirectly associated matters such as travel.

Because of the monetary assets that financial services organisations control, they commonly also provide the means whereby individuals and corporations can acquire borrowings, and corporations can gain equity funding. Because enormous scope for misinformation and manipulation exists, supervision of prospectuses and annual reports is a major focus of corporations regulation.

There is some evidence of convergence between financial service and insurance service organisations, and the possibility that the long-heralded competition between financial services and telecommunications providers may in time mature into the conventional patterns of partnership, alliance, merger, takeover, absorption and re-definition.

Beyond these mainstream functions and trends, a more general interpretation of 'financial services' exists. This includes the conduct of commerce in:

It may be that, as electronic exchange capabilities are applied to such matters as insurance, real property, durable chattels (such as cars), 'investibles' (such as artworks, antique furniture and stamps), and intellectual property, these markets may also come to be regarded as 'financial services', or may be regulated through the same agency/ies that supervise financial services.

This paper interprets the primary concern of the conference to be with financial services in the sense of commerce in currencies, securities, commodities and their derivatives.

Electronic Commerce

Electronic commerce is a general term for the conduct of business with the assistance of telecommunications, and of telecommunications-based tools.

The term's origins are in the area of the procurement of goods and services. It is also being increasingly used to refer also to business processes which have nothing to do with procurement, such as registration and licensing, and administration of the courts. The scope of electronic commerce is therefore far broader than just financial services.

Discussion of the scope of electronic commerce, and descriptions of models of 'deliberative purchasing' and of 'spontaneous purchasing' are to be found at ECDefns.html.

The Marketspace

The other term that defines the scope of this Conference is 'the marketspace'. This was popularised several years ago in a Harvard Business Review article (J. F. Rayport and J. H. Sviokla, 'Managing in the Marketspace', Harvard Business Review, November-December 1994, pp.141-150).

The marketspace is distinguished from conventional, physical marketplaces, and refers to the virtual context in which buyers and sellers discover one another, and transact business. It is the working environment that arises from the complex of increasingly rich and mature telecommunications-based services and tools, and the underlying information infrastructure.

Electronic commerce relates to those portions of the business process that involve data flows. This has led many people to the interpretation that electronic commerce is merely an adjunct to real commerce in physical goods and services, which can only be conducted through real logistics.

There are, on the other hand, very substantial and very important marketspaces in which the goods and services are digital in nature, and in which contracts are fulfilled using the same infrastructure whereby they are negotiated. These include:

The majority of financial services are digital in nature, and are therefore capable of being supported by electronic commerce.

Electronic commerce in marketspaces offers very substantial advantages over conventional commerce conducted in physical marketplaces. Hence conventional commerce in financial services may soon be relegated to a collection of niches, and the current dominance of physical locations and analogue communications may be shortly superseded by virtual locations and digital communications.

The Public's Interests

Individual members of the public have a variety of interests in electronic commerce in the financial services marketspace. This section discusses these interests under the following headings:

  1. Market Features
    1. Activeness
    2. Stability and Robustness
    3. Accessibility
  2. Market-Related Information, and Its Accessibility and Comprehensibility
  3. Control over Abuses

(1a) Active Financial Markets

At two different levels, there is a public interest in markets being liquid. One need is for market depth, i.e. for financial assets to be sufficiently frequently traded that they are negotiable at short notice and for prices that will not be substantially affected by the appearance of a new seller or a new buyer. At a higher level of abstraction, financial markets are an important means whereby commerce is facilitated, and hence the level of economic activity is sustained.

Activity in markets is aided by low transaction costs, and by the incentive of potential short-term profits. This can be afforded by ongoing rises in market indices, but also by volatility, such that opportunities are created for profits from both upwards and downwards movements. Activity is enhanced by participation by major institutions as well as individual investors.

(1b) Stable, Robust Financial Markets

A major weakness of active financial markets is the volatility of prices and hence of asset-values. This causes serious harm to the financial health of individuals and corporations who cannot choose the point in time when they divest themselves of assets. This results in uncertainty and nervousness, and has a negative impact on the confidence of individual consumers / investors, and hence on 'business confidence' generally.

With an increasingly large proportion of individuals' savings trapped in alienated superannuation funds, dire warnings about action against people who fail to provide for their retirement, and an increasingly large proportion of individuals watching market-prices, public confidence may be becoming even more susceptible to variations in market-prices than it used to be.

Another matter of concern to the public is the proportion of trading in financial markets which is artificial, rather than conducted in support of real transactions. A vast amount of the turnover is now conducted by corporate gamblers, in order to construct and maintain 'virtual' 'securities' and complexes of nominally counter-balancing portfolios. If it was clear that this was resulting in dampening effects on price volatility, then the public might be satisfied that 'the invisible hand' is working in their favour. It isn't, and they aren't.

The problems of price volatility and extrinsic trading are compounded by doubts about markets' robustness. Whatever academic analyses may conclude, members of the public perceive price movements to be exacerbated by positive-feedback, 'bandwagon' patterns. If arbitrage and other trading strategies are operating as equilibrating mechanisms, then their effect is being swamped when major swings are in train. The fragility of public confidence then feeds forward into yet more fragility in market-prices and asset-values.

Physical marketplaces exhibit the phenomenon of mass hysteria. It remains to be seen whether marketspaces will dissipate that effect, or whether 'virtual mass hysteria' will be a significant factor in forthcoming shocks.

(1c) Accessible Financial Markets

Institutional investors are increasingly dominating financial markets. Individual wealth is being sucked into superannuation funds. Consolidation processes such as unit trusts and managed funds are resulting in wholesale / retail stratification, and a multi-tiered / highly-intermediated superannuation investment industry. Although these provide a service to individual investors, they involve layer upon layer of middlemen.

Market mechanisms are increasingly gearing themselves to the needs of institutional investors, and there is a fear that the general public may become increasingly intermediated away from the main marketplaces, through high transaction pricing for the relatively small lots they deal in, and opaqueness in the mechanisms whereby investments are made and prices set.

In short, these developments have the effect that individuals are being distanced from financial markets. Concern exists that this dominance and distancing may harm the interests of individuals by further enhancing the balance of power in favour of large institutions and large intermediaries, and against small individuals. The overwhelming public cynicism about the performance of fund managers and the substantial fees they extract for their efforts, and the flight away from managed superannuation funds to self-managed funds, might be interpreted as evidence of such concerns.

On the other hand, electronic commerce can have the effect of lowering entry, participation and transaction costs, and hence reducing the present price-break bias in favour of very large transactions. The information technologies and information infrastructure may therefore provide scope for disintermediation, and improved participation by individuals. Heavy-handed regulatory regimes could, of course, tend to work against such developments.

(2) Accessibility and Comprehensibility of Market-Related Information

Conventional accounting information is entirely discredited as a means of evaluating the behaviour of companies, and of their values as investment assets. This seriously undermines the effectiveness of corporations' prospectuses and periodic reports.

Because of the irrelevance of available information, most consumers are forced into the role of gambler, or of dependant on an investment-adviser intermediary who speaks in incomprehensible tongues, who deals through other intermediaries who speak in tongues that appear to be at best marginally comprehensible even to the investment adviser, and whose affinities and incentives are unclear.

The fast-breaking information that influences short-term movements in prices is currently largely trapped within closed commercial services which have a high cost of entry. Individuals have an interest in this information becoming available, promptly and reliably, over low-cost public systems such as the Internet. Providers, however, face considerable risks if they move towards an open mode, over open networks, and may prefer to sustain and protect their closed-system approaches for as long as practicable.

Accessibility alone is, however, just one of the pre-requisites for comprehensibility. Educational courses, consistency of usage of terminology, and intermediaries that represent the interests of the individual rather than some intermediary or principal corporation, are also needed. Without them, individuals are unable to understand the intrinsic and extrinsic values of traded goods and services, and of the contexts in which they are buying and selling.

A further concern is equity of information access. There is a very substantial lack of government commitment to ensure that Internet services are equally available to all Australians. Until and unless the Universal Service Obligation is matured into the Information Age, there are bound to be significant structural inequities based on such factors as urban versus country location; high-income versus low-income suburb-demographics; and income, occupation and educational level of household. For this reason, means of reticulating information, additional to the Internet, may need to be sustained, and even further developed, over an extended period.

(3) Control Over Abuses

The public is interested in having those organisations and individuals that are inclined to behave unreasonably, dissuaded from doing so.

The debacles of the late 1980s, and the failure of regulators to achieve more than a minuscule number of successful prosecutions, make the public highly suspicious of any suggestion that existing sanctions are sufficient to prevent abuse.

Where organisations or individuals behave unreasonably, it is important that the behaviour be detected. Again, the public is sceptical about the ability of existing regulatory regimes to perform in the public interest. Despite frequent suspicions about insider trading, for example, prosecutions are rare.

Where abuses occur, the public seeks not just retribution in the form of gaol sentences, but recovery of the money they lost. To achieve this, effective insurance schemes are needed, accompanied by processes that are quick, straightforward, inexpensive and transparent. Once again, recent history leads the consumer to have serious doubt about the existence of effective recourse against miscreants.

Interim Conclusion

This paper intentionally focuses on individual interests rather than on the conventional, more abstract interpretations of 'public interest'. There are inherent conflicts among the various interests that individuals have in electronic commerce in the financial services marketspace. Even allowing for that, however, the public would give low marks to the regulatory arrangements relating to conventional, physical marketplace-based commerce in financial services.

New Concerns

(1) Increased Incidence of Organised Crime

Law enforcement interests express the fear that electronic commerce, through such capabilities as strong encryption of messages and anonymous payment mechanisms, may empower not only law-abiding individuals, small enterprises and big business, but also organised crime.

The arguments are cogent, and the prospects real. The deficiency in the argument is that the general public has difficulty in perceiving much difference between large corporations, large governments, and 'organised crime'. Each of them is remote from the individual, exacts tribute, makes decisions and acts in their own interests, and seeks to bias the processes of the societies in which they operate in order to suit their own needs.

As a result, the degree of public concern about this particular matter is a lot less than law enforcement agencies would like it to be.

(2) The Diminution of Individual Freedoms

Information technology has delivered to corporations and government agencies the means to process and store vast quantities of data. One of the main purposes to which it is being applied is the surveillance of individuals through the transactions that they engage in.

Particularly since the middle of the twentieth century, there has been a marked trend towards increasingly data-intensive relationships between individuals and the organisations with which they deal. Important elements in the tightening web of data surveillance include the increasing interest in multi-purpose identifiers supported by physical or biometric measures, and the tendency to presume that transactions undertaken by individuals should be identified rather than anonymous. This is most unhealthy for the future of Australian society.

Major corporations, and wealthy, high-income and powerful individuals, operate with increasing insulation from local laws. Most people, on the other hand, are increasingly subject to automated record-keeping and the oppressive atmosphere that omniscience engenders.

(3) Supra-Jurisdictionality

Significant difficulties have always existed in relation to 'trans-jurisdictional' commerce, i.e. business activities that cross jurisdictional boundaries. In some cases, in particular where elements of a transaction are quarantined in jurisdictions that do not recognise international conventions, the behaviour can be effectively 'extra-jurisdictional', in the sense that it is incapable of prosecution in any court of law.

The Internet is eminently susceptible to hyperbole, as evidenced by the confusions between technological and practical fact, on the one hand, and sci-fi notions such as 'cyberspace' and 'the matrix', on the other. 'The marketspace' is capable of similar misrepresentation. Even so, it is readily arguable that electronic commerce is lifting the art of regulatory avoidance to new planes.

The term 'supra-jurisdictionality' usefully conveys the way in which business conducted in virtual marketspaces may be subject to no existing legal jurisdictions at all. In the imagery popularised by John Perry Barlow, it is a new 'electronic frontier'; it is currently lawless; and it may prove to be even less capable of subjugation by formal legal architectures than is the kind of business currently conducted partly in Australia and partly in regulatory havens.

(4) Havens for The Little People

The many Australians who perceive official society as becoming too constraining are on the lookout for means of establishing private spaces within which they can operate free from officious intrusions. The public interest may be in sustaining a balance between repressive, social control measures, on the one hand, and individual freedoms on the other; but individuals generally seek to gain the freedoms for themselves and impose the controls on others.

Among the many implications of the marketspace are the democratisation of social and economic escape hatches. The facilities that have been available to 'the rich and powerful' to avoid inconvenient laws are increasingly within the reach of the general public. It will be unsurprising if they enthusiastically adopt such capabilities as untraceable payment mechanisms, virtual casinos, and multiple identities.

(5) Diminution of the Tax-Base

Wealthy and high-income corporations and individuals rationally utilise opportunities to place flows, profits and assets beyond the grasp of national taxation agencies. Electronic commerce provides a raft of new ways to do this.

What is even more significant about electronic commerce is that it also lowers the threshhold, in the sense of the set-up costs and transaction costs involved in exploiting the opportunities. This is a special case of the previous concern about 'havens for the little people'.

The number of companies and individuals capable of reaping the benefits of tax-avoidance strategies is set to increase very quickly. Hence the proportion of the country's nominal tax-base that is liable to slip through the sieve will increase dramatically during the next two decades.

(6) The Slide Towards Ungovernability

The comfortable, gradualist scenarios conventionally presented by corporate CEOs and executive regulators need to be juxtaposed against alternative interpretations of the directions in which society is heading.

Public services are largely funded through high taxation rates applied to captive audiences. In the new, electronic context, this twentieth century edifice may prove to be unsustainable.

The near-futures imagined by science fiction novelists of the 'cyberpunk' genre perceive that untaxability will result in ungovernability. They envisage that there will be a breakdown of government-imposed law and order; that the 'hyper-corps' will retreat inside corporation-controlled enclaves; and that less polite society will slide towards high-tech, but fairly chaotic tribalism.

To inoculate themselves against excessive scepticism about mere sci-fi fiction, corporate CEOs and regulatory agency executives need to consider Brooklyn and The Bronx (of almost any decade), the Italian black economy, the Beirut of the 1980s, the 'once-was-Yugoslavia' of the 1990s, and post-Gorbachev Russia, where the official police compete with various mafiosi as but one of a range of alternative protection agencies.

During the last half-century, Australia has been one of the most orderly of all the democracies. It does not have any God-given right to remain that way.

Regulatory Strategies

This paper has criticised the performance of regulators in the past. And it has expressed concern about both the substantial implications of electronic commerce for society, and the failure to appreciate, analyse and confront those difficulties. What positive messages can it offer?

The forces at work are powerful, and it could be that laissez faire will emerge, not as an ideological choice, but as a natural implication of electronic technologies. On the other hand, technologies have seldom determined futures by themselves. Societies have the capacity to resist and to shape. Consideration is therefore also needed as to what measures should be taken on behalf of individual consumers and investors.

(1) Understand The Phenomena

The first and most obvious inference is that regulators, and financial services executives, need to subject the various developments to much more careful scrutiny. We need to move beyond talk-fests on the one hand, and, on the other, inadequately resourced studies with insufficiently broad focus.

(2) Denial Is Not An Option

Grey and black markets have flourished during the era of physical marketplaces. It would be futile for regulators to try to prevent the emergence of grey and black marketspaces that operate outside the regulatory schemes of particular jurisdictions. Similarly, any regulator that pretends that there is not already substantial participation in such markets by large corporations active in Australia, and at least moderate participation by wealthy and high-income individual Australians, will suffer a serious credibility shortfall.

(3) Place Matters

At least for the foreseeable future, people will continue to exist in what net aficionados refer to as IRL ('in real life') or 'meatspace'.

People will seek out safe places within which they and their families can enjoy the fruits of advanced society. They will therefore place a high premium on law and order in their local area, and will be prepared to pay for it. Some of what they pay for will benefit no-one but themselves; but they will inevitably contribute towards some common goods and services.

In short, the forces that are rendering the nation-state unsustainable and irrelevant are not undermining the need for and possibility of communities.

(4) Motivate Meaningful Participation in 'Official Society'

People, including the people who perform the various roles within corporations, live in places. So the primary strategy that is available to regulators is to create incentives for corporations and individuals to operate within their local society's rules.

Examples of the kinds of incentive mechanisms that might attract a significant level of participation include:

In the light of these suggestions, it is interesting to evaluate the nature of recent discussions about whether Australian financial services should be subjected to a single super-regulator or multiple specialist regulators.

Beyond the special-interest pleading that has tended to drown out rational discourse, it would seem to be essential that multiple agencies exist to reflect the various and competing public interests; but that they be required to achieve a much greater degree of co-ordination than has been the case in the past, in order to both serve their nominal purpose, and to enable efficient dealings between corporations and the regulatory bodies they are subject to.

(5) Implement Tiered Regulatory Mechanisms

Formal regulatory mechanisms are stiff, and unadaptive. Benefits can be achieved through the stimulation of less formal control mechanisms over unreasonable behaviour. In the context of marketspaces, this author refers to measures to achieve this outcome as 'encouraging cyberculture'.

Elements of this include the requirement that organisations implement complaints mechanisms; industry self-regulatory schemes in which codes are established and enforced by associations of similar organisations; and 'moral suasion'.

It is rare that self-regulation is anything more than window-dressing, unless the credible threat exists of powerful sanctions being imposed by an agency capable of enforcing them. The principles are now well-understood, and capable of being implemented in a manner that can reinforce public confidence, yet be acceptable to corporations.

(6) Partner Jurisdictions

At this early stage of the demise of the nation-state, countries have sufficient residual power to exercise both carrot and stick motivators to encourage organisations and individuals to participate in official society. Hence the incentive schemes can currently be implemented at a national level. Their credibility will, however, wane in direct relationship to the power of the State.

But people travel, and many, especially rich ones, enjoy doing so. They like other places to have the kind of law and order that protects them. The probability is, therefore, that people will value coalitions of national jurisdictions in which they 'feel safe'.

Hence there is scope for reciprocal arrangements, and harmonisation of law between partner jurisdictions. This creates the possibility for jurisdictions to cross-promote the particular balance between orderliness and dynamism that their systems offer. If they are to have any impact, however, such arrangements will need to be considerably more convincing, effective, brisk and inevitable than, for example, contemporary extradition treaties.

Theories of strategic advantage and alliance have been in vogue among corporations for some time. It is necessary that jurisdictions apply those same principles to international (or, more generally, inter-jurisdictional) patterns.


This paper has presented a perspective on 'the public's interests' in the regulation of the marketspace in financial services. It differs substantially from what the author interprets as the received wisdom among chief executives of both regulatory agencies and the corporations that they regulate, whose focus is on 'the public interest'.

Scenario-building is an error-prone business. Businessmen, regulators and public interest advocates are therefore ill-advised to rely on any single pattern for the future. A scan of a range of developments relevant to the electronic marketspace does, however, reveal many factors that throw serious doubt on a comfortable, gradualist interpretation of change during the next few decades.

The most bleak of the possible futures can be resisted; but not by adopting the strategy of 'more of the same, only better'. Regulators and CEOs alike must exercise considerable imagination if they are to serve their own interests, let alone the interests of the public.

Additional Reading

This paper has been prepared briskly, and has not been the subject of careful literature research. It therefore lacks references to material underpinning the arguments.

Prior papers by the same author examine aspects of the matter, however. These can be found by scanning his web-pages. Of particular relevance are the following recent papers:

Clarke R. (1993) 'When Do They Need to Know 'Whodunnit?' The Justification for Transaction Identification; The Scope for Transaction Anonymity and Pseudonymity', March 1993, at

Clarke R. (1993) 'A 'Future Trace' on Dataveillance: Trends in the Anti-Utopia / Science Fiction Genre', March 1993 at

Clarke R.A. (1994) 'The Digital Persona and Its Application to Data Surveillance' The Information Society 10,2 (June 1994). Abstract at

Clarke R. (1994) 'The Information Age as Threat' Address to the Round Table on 'Public Access to Networked Information', National Scholarly Communications Forum (NSCF), Canberra, 13-14 October 1994, at

Clarke R. (1994) 'Information Infrastructure for The Networked Nation', November 1994, at

Clarke R.A. (1995) 'Human Identification in Information Systems: Management Challenges and Public Policy Issues' Info. Technology & People 7,4 (March 1995). At

Clarke R. (1995) 'Net-Ethiquette: Mini Case Studies of Dysfunctional Human Behaviour on the Net', April 1995, at

Clarke R. (1995) 'The Strategic Significance for Business and Government of Information Infrastructure and Technoculture', Invited Presentation to the East Asian Conference on Infrastructure for the 21st Century, Kuala Lumpur, 2 May 1995, at

Clarke R. (1995) 'Electronic Payment Mechanisms', at

Clarke R. (1995) 'Issues Arising From Electronic Payment Mechanisms', at

Clarke R. (1996) 'Regulating the Net', at

Clarke R. (1996) 'Cyberculture: Towards the Analysis That Internet Participants Need', April 1996, at

Clarke R.A. (1996) 'Cryptography in Plain Text' Privacy Law & Policy Reporter 3, 4 (May 1996). At

Clarke R.A. (1996) 'Crypto-Confusion: Mutual Non-Comprehension Threatens Exploitation of the GII' Privacy Law & Policy Reporter 3, 4 (May 1996). At

Clarke R. (1996) 'Privacy and Dataveillance, and Organisational Strategy', presented at EDPAC, May 1996, and at

Clarke R. (1996) 'Trails in the Sand', at

Clarke R. (1996) 'Chip-Based Payment Schemes: Stored-Value Cards and Beyond', at

Clarke R. (1996) 'How Do You Cope With Censorship? An Analysis for IT Services Executives' Invited Address to CAUDIT (the Conference of the Australian Universities' Directors of IT), 23 August 1996, at

Clarke R. (1996) 'Issues in Technology-Based Consumer Transactions' Invited Address to the Annual Conference of the Society of Consumer Affairs Professionals (SOCAP), Melbourne, 26 September 1996, at

Clarke R. (1997) 'What Do People Really Think? MasterCard's Survey of the Australian Public's Attitudes to Privacy', Privacy Law & Policy Report 3,9 (January 1997), at

Clarke R. (1997) 'Encouraging Cyberculture', April 1997, at


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Created: 12 January 1997

Last Amended: 23 January 1997

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