Constitution+(Group+3)

=Constitutional Law in the Business Environment= Contributors from Lawrence Technological University toc Leo Betz-Due Process and Equal Protection Susan Karczag-Constitutional Powers of Government Marvin Shorter-Bill of Rights Nicole Stevens-Privacy Rights

= Introduction = = = The United States Constitution has a tremendous effect on the legal system. This affects the governance and function of businesses and individuals. The [|U.S. Constitution] is the supreme law of the land and it has a broad influence and is very important to both individuals and businesses.[1] It was formed to replace the imperfect Articles of Confederation which were put into place after the Revolutionary War and which left the nation with a collection of states that looked out for their own interests. The Constitution created a “more perfect union,” which was aimed at establishing and maintaining justice, domestic peace, a common defense, the welfare of the citizens, and liberty. [2] Since its ratification in 1789, it has dictated how the citizens of this country interact in a variety of sectors including the business sector. It is incredibly relevant to all Americans in regards to how they engage in their daily life and in their business activities. Businesses have an obligation to follow the same constitutional laws that individuals follow. Businesses can face fines and can be shut down if they violate laws, just as individuals who violate laws can go to jail. There are various factors affecting a business and how it relates and follows the constitution including the understanding of:
 * 1) Constitutional Powers of the Government
 * 2) Bill of Rights
 * 3) Due Process and Equal Protection
 * 4) Privacy Rights

=__**I. The Constitutional Powers of Government**__=
 * By: Susan Karczag**

History
In order to create a more perfect union a stronger central government had to be built and yet this central government needed to be kept in check so that the states would never again come under a rule like that of Great Britain. Further, this government should represent the people and respond to their inalienable rights. At the constitutional convention, there were those who wanted the central government to have more power than the states called ‘the federalist’ and those who wanted the states to have more powers than the central government called, ‘the anti-federalists’. In the end a federal form of government was decided upon which allowed the central government and the states to share sovereign power.

The Constitution is organized in a brief document of seven articles that contain several clauses that give shape to the organization of the central government. Herein, the federal government is separated into three branches, each with its own purposes and powers. The Congress makes up the legislative branch which creates laws, the president represents the executive branch which enforces laws, and the Supreme Court represents the judicial branch which interprets laws. As these three branches work together, they form a system of checks and balances. The powers and authorities of one branch limit the powers and authorities of the other. For example, the checks and balances involved in the passing of legislation and the nomination and removal of persons from their respective offices is illustrated __here__.[3]



Additionally, the constitution was formatted to allow the people to be represented on the national level through a representative democracy. //Representative democracy// is a variety of democracy founded on the principle of elected people representing a group of people, as opposed to direct democracy.[4] One example of representative democracy is seen in the process of nominating a president. People cast their votes and these votes are transferred to a specific elector (members of the Electoral College) who cast an electorate vote. The final decision on the winner is based on these votes.

In response to the failures of the articles of confederation, the new form of government was meant to be more stable financially and politically. They were able to collect taxes or insure a healthy collective commerce among the states and were equipped to fund an effective national government or national defense. Enforcement of just and productive national laws was also an important power that needed to be addressed. The Constitution specifically listed the powers of the national government as enumerated powers. These are listed in Article I, Section 8 of the constitution and a complete list of all the powers granted can be found //throughout// the constitution and are referenced __[|here]__.[5] All other powers, not listed (//eventually//) went to the states as police powers.[6]

Powers of the Constitution
One important power granted to the national government that gives substance to all the other powers listed within the constitution is the Supremacy Clause. It states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”[7] Furthermore, the Constitution is to be upheld by the members of the judicial, legislative and executive branch at the federal, state, and local level.[8] The Supremacy Clause was substantiated when it came under its first test in the Supreme Court in the case __//[|McCulloch v. Maryland]//__.[9] In this case it was determined that if a state law interferes with the constitution, that state law is invalid. It was also determined that although the constitution did not explicitly state that the federal government had the power to establish a national bank, it was clearly necessary that a national bank be set up in order for the national government to exercise its enumerated power to coin money. Based upon a necessity paired with the Necessary and Proper Clause of the Constitution (which states congress has the power, “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”) it is evident that the congress can have implied powers not specifically listed in the constitution.[10]

It should also be noted that special care is taken to determine which law governs in a particular circumstance where both the federal and the state government have powers, such as the power both have to tax residents.[11] Shared powers are called concurrent powers and some are represented __here__.[12]



Furthermore, in circumstances where there is a federal law that covers an entire issue this creates a situation of //preemption// where the state has no jurisdiction at all. Here is an example of preemption: “In order to encourage a free market, federal law requires all trucking companies to charge a single per-pound weight for all non-hazardous freight, regardless of the nature of the freight carried. The state of Verhampshire [that is, any state], in an effort to bolster its dairy economy, establishes a lower state-enforced price for the transport of locally produced dairy products. The Verhampshire law is preempted by the federal legislation, and will likely be struck down.”[13]

Other significant powers granted in the constitution to the national government that enable it to carry out its intent to insure justice, peace, a defense, welfare, and liberty are the tax and spending powers and the powers to regulate commerce granted by the Commerce Clause.[14] In response to the national taxing and spending powers, national taxes today are usually valid as long as they seem reasonable and spending today is considered valid as long as it goes toward something considered worthwhile, are not in violation of the Bill of Rights, and do not discriminate one state from another.[15] The commerce clause states, “The Congress shall have Power …To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”[16] It allows the national government to pass laws to insure that commerce among the states can flow without interferences. Also the Constitution limits the states powers, which inherently gives more power to the national government.[17] Other parts of the constitution grant powers to the president and to the federal judiciaries to, again, help form a more perfect union.[18], [19]

Limits on Power
In order to prevent the central government from becoming too strong the constitution provides some limits on the national powers and also directly grants several rights to the states and the citizens. Within the constitution congress’ powers are limited, but inversely, the constitution grants state rights and offers them a guarantee.[20], [21], [22] One notable right granted to the states is in the //Full Faith and Credit Clause// which states, “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”[23] This clause essentially provides that each state treat the citizens of other states in a similar way to the members of its own state.[24] This is important because it prevents unnecessary discrimination and promotes unity. So this clause is also one that facilitates functional interactions and relations between the several states. It prevents businesses to be discriminated against because of the state in which they are located or doing business. Cases that have gone through the court system clarify what constitutes discrimination. For an example case click __[|here]__.[25]

While the majority of citizen rights are given in the Bill of Rights and other amendments to the constitution, one declares a special guarantee to citizens also. //The Privileges and Immunities Clause// states, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”[26] While relations among the states and the functional cohesiveness have already been somewhat addressed in the commerce and Full Faith and Credit Clauses, additional unity among the states is created through this clause. This clause ensures that the things legally established in one state will be honored and enforced in any other state. This includes issues such as marriage and divorce decrees, contracts, wills and more.[27] One issue that comes up is the matter of //extradition//, in which states are required to turn over persons convicted in other states that have entered their state. For businesses this clause means that business contracts established in one state are honored in other states. If a distributor who is under a contract with a manufacturer moves to a state different from the one in which the original contract was established, the contract would still be held up (unless there was a specific provision per the special circumstances of the contract). For individuals, this clause allows the citizens and states to be free to interact with other states and adds to the sense of unity. Click [|here] to be directed to a site that helps visualize these principles.

The U.S. constitution is a living document. One provision that allows it to be changed over time is its 5thArticle, which allows for amendments to be made. The constitution was set up in anticipation of a judicial review process which would make an interpretation of it. Although the power of judicial review is not given to the Supreme Court in the constitution, it was established in the case of Marbury v. Madison. For more information about this case read this __[|case summary]__.[28] The Supreme Court continues to interpret the constitution today. [|See this atricle] [29] One of the best examples of the Supreme Court’s rulings making the Constitution a living document is seen in the Commerce Clause. This clause which gives much power to the national government has been interpreted in various ways through the years. More specifically, the interpretation of what constitutes regulation of commerce for fair trade has changed over the years. Often it is interpreted to give broad powers to the national government. The following video, shows how the constitution's interpretation has been refined and has evolved since its conception. __video.__[30] media type="youtube" key="6JfC-BJxnhQ" width="425" height="350" The Commerce Clause continues to be interpreted recently in the Affordable Care Act Ruling. Read the Court’s summary and opinion [|here].[31] It is a great thing that the constitution has created a powerful yet controlled central government and has been drafted in a way that allows it to be flexible and still work for America today. The Constitution is not only important for individuals, but for businesses to ensure their business practices are legal and following items set up in the Constitution.

=__**II. The Bill of Rights**__= While the US constitution set up an excellent foundation for the creating a central government that was powerful but not too powerful there was still concern that the national government could become too strong and trample on the rights of the citizens.
 * By: Marvin Shorter**

The importance of a written declaration of the rights of individuals caused the first congress of the United States to submit twelve amendments to the U.S. Constitution to the states for approval. These are known as the bill of rights (ten of the amendments) and the bill of rights was adopted in 1791 and embodies protection for the individual against various types of interference by the federal government. [32]

The Bills of Rights are not only for individuals but are for businesses too, which is an important concept all business owners, business law students and MBA students should understand!

The first 10 amendments, commonly called the Bill of Rights, outline several important rights that the government is specifically prohibited from taking from the people. How the constitution applies to business is for the courts to decide ultimately, and many opinions exist on this subject. [33]

Please view a sample of all of the [|Bill of Rights] here.[ 34]

Learn the Bill of Rights in this funny video by a highschool history teacher.[35] media type="custom" key="20396448" Interesting way to interpret the Bill of Rights below [36].

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The United States Supreme Court “incorporated” most of these rights into the protections against state actions afforded by the fourteenth amendment to the Constitution.

The amendment further states that “No state shall…deprive any person of life, liberty, or property without due process of the law.” From this amendment, most of the rights and liberties set forth in the Bill of Rights apply to state governments as well as national governments. Just as in the original constitution, the rights guaranteed by the first ten amendments are very general. An example of this is that the second amendment states that people have a right to bear arms, but it doesn’t explain the extent of the right. The Supreme Court is the final interpreter of the constitution that gives meaning to these rights and determines boundaries within each amendment.

An example from Valparaiso University [|Limiting Federal Restrictions on State and Local Government] [37] can be found here.

Learn more about the first amendment by listening to this song media type="custom" key="20396494" [38]

There are many items which can affect a business in regards to the first amendment. A first amendment song above can help you learn more about the first amendment in a fun way!

Freedom of Speech
Freedom of speech allows business to promote their products. The first amendment deals with freedom of speech as well. Symbolic speech such as movements, articles, gestures of clothing or other forms of expressive conduct is given substantial protection by the courts. An example would be wearing a T-Shirt of a presidential candidate. This is a constitutionally protected form of expression. Other examples include video game ratings where there was an actual court case where the outcome has affected millions of individuals and their determination of viewing a video.The case was [|Brown V. Entertainment Merchants Association] This was a huge case for the Supreme Court of the United States. It revoked a State of California law enacted in 2005 regarding the sales of violent video games to kids. Parents would know the ratings of all games they purchase for their children because of ratings that must be displayed on the front of the video game covers. Another article discusses video games and first amendment protection [|here](Narcisse, 2007). [40]



Other examples of free speech include items businesses may make such as T-shirts.

A person's right to free speech is preserved by the first amendment, which restricts congress from making laws restricting this right. Of course, the right can be modified as necessary for the public good and safety. Free speech also applies to a business. This was challenged with campaign finance reform, which restricted a business's right to donate to political campaigns. Some businesses owners objected, saying that it was part of free speech to give money to a political candidate of their own liking. However, On January 21, 2010, the U.S. supreme court ruled in a five to four decision that corporations have the same right to free speech as individuals, and lifted the restrictions on contributions.

There are reasonable restrictions and there must be a balance struck between government’s obligations to protect its citizens and those citizens exercise of their rights. Corporate political speech is also is protected by the first amendment. Commercial Speech consists of advertising and marketing made by business firms that involve only their commercial interests. States have the power to restrict certain kinds of advertising. An example of how this amendment affected a business would be the case of a beer company in Canton, Michigan called [|Bad Frog] [42]

Unprotected Speech is another form of speech not protected by the first amendment. This is any speech that harms the good reputation of another or defamatory speech is not protected under the first amendment. Obscene Speech is not protected by the first amendment. In [|Miller v.California] [43], the supreme court created a test for legal obscenity and under the test the material is obscene if the average person finds it violates contemporary community standards and the work taken as a whole appeals to a prurient interest in sex and the work shows patently offensive sexual conduct and lastly the work lacks serious redeeming literary, artistic, political and scientific merit.

Online Obscenity was declared in the year 2000. In 2000, congress enacted the Children’s Internet Protection Act (CIPA) which requires public schools and libraries to install filtering software on computers to keep children from accessing adult information. This amendment was tested but in 2003, the supreme court made the decision that this does not violate the first amendment because the filter can be disabled at anytime. The FBI has established that if any businesses distribute child pornography in cyberspace, they would be prosecuted. [|Flowchart] [44]for speech and first amendment

Freedom of Religion
This amendment prohibits the making of any law that pertains to an establishment of religion. It is a principle that supports the freedom of an individual or community, in public or private, to manifest religion or any beliefs in teaching, worship practice, and observance; the concept is generally recognized also to include the freedom to change religions at any time or simply not follow any religions. [45]

The //Establishment Clause// states that "Congress shall make no law respecting an establishment of religion," is generally read to prohibit the Federal government from establishing a national church ("religion") or excessively involving itself in religion, particularly to the benefit of one religion over another. This now applies to state governments as well.

The //Free Exercise Clause,// states that Congress cannot "prohibit the free exercise" of religious practices. The Supreme Court has consistently held, however, that the right to free exercise of religion is not absolute.

For example the government can require that a child receive certain types of vaccinations or medical treatment if his or her life is in danger, regardless of the Childs religious beliefs. when there is a safety issue, the government must have an interest in //protecting// the public.

//**Searches and Seizure**// One of the keys to why business in this country has been so successful is the fourth amendment protection from unreasonable search and seizure. This fourth amendment protects the right of the people to be secure in their persons, papers and houses and effects. Law officers must obtain a search warrant before searching a property or taking any property. If there is probable cause, the law enforcement has to go and convince a judge that there are reasonable grounds or probable cause for a search and that search is deemed necessary. The general rule under the Constitution is that a valid warrant is required for a valid search. There are, however, several exceptions to this rule, based on the language of the fourth amendment that "the people" are to be "secure ... against unreasonable searches and seizures" [46], [47]

Business Context
Warrants are not usually needed for businesses such as pawn shops, liquor stores, guns and strip mining businesses. This is because the government has a strong interest in protecting the public a warrant is normally not needed for these places.

Airports are another business that is treated as highly regulated industry and that suspicion less checkpoint screening of airline passengers is constitutional. [48] Read [|here] [49] how businesses are also affected by Bill of Rights.

Self Incrimination
Self Incrimination from the Fifth Amendment states that, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [50]

When you hear the term “plead the fifth,” this means this is a refusal to answer a question because the response could form self incriminating evidence. Historically, the legal protection against self-incrimination is directly related to the question of torture for extracting information and confessions.

In [|Miranda v. Arizona](1966) the Supreme Court ruled that the Fifth Amendment privilege against self-incrimination requires law enforcement officials to must tell the suspects interrogated in custody of his right to remain silent and to obtain an attorney. [51]

This Fifth Amendment guarantees against self incrimination only for //people// and **not** for //businesses// such as corporations or partnerships. If a partnership has to show business records it must do so even if the information or records they turn over incriminates their partners of the firm. Sole proprietors and sole practitioners are fully protected against self incrimination because they function solely on their own.

Above is an example of self Incrimination [52]

=__**III. Due Process and Equal Protection**__= Some amendments that are important especially are the Due Process and Equal Protection. The Due Process and Equal protection clauses were generated and imposed by the Fifth Amendment and the Fourteenth Amendment of the United States Constitution. The Fifth Amendment was called //Trial and Punishment, Compensation for Taking// and was ratified on December 15th, 1791. It states: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person [|be subject for the same offense to be twice put in jeopardy of life or limb] ; nor shall be compelled in any criminal case to be a witness against himself, nor be [|deprived] of life, liberty, or property, without [|due process] of law; nor shall private property be taken for public use, without just compensation.” [53] This amendment discuses the Due Process aspect of the topic and was parts of the Bill of Rights. Due Process is an ancient concept which can be traced all the way back to the Magna Carta agreement of 1215. The Fifth Amendment has its roots in protecting citizens from government authority abuse in legal procedures.
 * By: Leo Betz**

The Fourteenth Amendment
The Fourteenth Amendment was called //Citizenship Rights// and was ratified on July 9th, 1868. Due Process and Equal Protection is relevant to Section 1 of Amendment XIV which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” [54]

The Fourteenth amendment was a direct descendant of the issues fought over during the American Civil War which was from 1861 to 1865. It was a part of the Reconstruction Amendments. It is the foundation for controversial civil rights movements today, including, but not limited to, physician assisted suicide and abortion. It was one of the key amendments in proving rights for people who were considered slaves prior to its ratification. [55]

It is important to understand that both of the above mentioned Amendments were originally in place to limit the powers of the national government. Overtime, the courts ruled that state governments are also incorporated into such limits and protections of citizens. It is also equally important to understand that while we typically think of these amendments as citizen and people related, any separate business entity, company, and organization within the United States of America is considered to have the same rights and privileges as “natural persons” do. For instance, corporations exist as separate “legal persons” so they are comparable to “natural persons” in the discussion of rights. Companies and persons are comparable in legal procedures and language.

The Fifth and Fourteenth Amendment state that no person shall be deprived of life, liberty, or property, without due process of law in different contexts. Typically due process has two portions to it; procedural due process and substantive due process. Procedural due process requires any decision to take life, liberty, or property by the government must be made equitably. The government must give proper notice and opportunity for the person (or entity) harmed to voice their disagreement. This process deals with the just procedures in determining whether the burden should truly be subjected upon the person or an entity. A just procedure is one in which the burdened person has a chance to object to the imposed burden in front of a neutral and impartial decision maker. This decision maker does not have to be a judge but could be a judge if the parties choose so. Only after both sides are heard can the burden be considered legal government action. [56]

Due Process
Substantive due process protects the life, liberty or property of an individual against certain government actions regardless of the fairness of the procedures used to implement them. The purpose of this is to limit the government and its actions in the legislative and executive abilities. Typically to reach a level of violating substantive due process, government conduct must shock the conscience and it must be drastic. If a law or action limits a fundamental right, the state must have a legitimate and compelling interest to justify its action. One of the key topics to businesses dealing with this subject is interstate travel and privacy. Many companies rely on interstate travel for their operational transactions and if this right was somehow infringed upon by a state, substantive due process would be violated. Crucial to a company’s function is privacy. Although privacy and information is controlled by many other requirements such as the policies of being publically traded, if any law were passed to expose sensitive business information, the topic of a substantive due process violation is relevant. [56]

Equal Protection
Equal protection means that the government cannot enact laws that treat similarly situated individuals differently. Both substantive due process and equal protection require review of the substance of the law or other governmental action, rather than a review of the procedures used. When a law or action limits the liberty of all persons to do something, it may violate substantive due process; when a law or action limits the liberty of some persons but not others, it may violate the equal protection clause. [56] An example of this is includes if a law prohibits all advertisements on the side of taxis, it raises a substantive due process question; if it makes an exception to allow taxi owners to advertise their own business on the sides of taxis, it raises an equal protection issue.

When the issue of Equal Protection arises, when a law or action differentiates between individuals (or companies), the key terms which are examined are distinction and classification. The courts must determine if the law or action violates the equal rights protection clause by performing tests and applying scrutiny to the case. This is done to see if there truly was a distinction among the parties. There are three standards to these tests; Strict Scrutiny, intermediate scrutiny, and the rational basis test. Each one determines the severity of the direction of the equal protection case. These tests help classify court decisions for later reference for precedent. Generally, equal protection involves any discrimination to race, gender, and national origin by the government and its policies.

=__**IV. Privacy Rights**__= Privacy rights are very important and it affects every citizen in the United States and can affect businesses as well. This right took decades to get enacted however in the U.S. Constitution the right to privacy is not mentioned. In 1928, the Supreme Court Case, Olmstead v. United States, Justice Louis Brandeis stated in his dissent that the right to privacy is “the most comprehensive of rights and the right most valued by civilized men [57] (Cross and Miller, 2012, pg 112”). The majority of justices didn’t agree with Brande and it wasn’t until the 1960s when the Supreme Court endorsed the view that the Constitution protects individual privacy rights. “In a landmark 1965 case, Griswold v. Connecticut, the Supreme Court held that a constitutional right to privacy was implied by the First, Third, Fourth, Fifth, and Ninth Amendments [57] [58] (Cross and Miller, 2012, pg 112).”
 * By: Nicole Stevens**

The federal statues affected privacy rights in the 1960s. Americans took issues with their personal information in government files and they pressured the Congress to pass laws that would permit individuals to access their files. Congress then created the Freedom of Information Act in 1966. This act allows any person to be able to request copies of any information that the government has on them.
 * ([|[59|www.photosecrets.com)[[http://www.photosecrets.com)]**[59/|**[59]**]]**

HIPAA
The Health Insurance Portability Accountability Act (HIPAA) of 1996, was enacted by the United States Congress and signed by President Bill Clinton in 1996. This bill was sponsored by Sen. Nancy Kassebaum. Title I of HIPPA protects health insurance coverage for employees and their families when they change and or lose their jobs. Title II of HIPAA, is known as Administrative Simplification provisions that require national standards for electronic heath care transactions and national identifiers from providers, health insurance plans, and employers. Title I Health Care Access, Portability, and Renewability regulate the availability and breadth of group health plans and certain individuals this was amended through Employee Retirement Income Security Act (ERISA), the Public Health Service Act, and the Internal Revenue Code. Title II is Preventing Health Care Fraud and Abuse; Administrative Simplification; Medical Liability Reform defines policies, procedures and guidelines for maintaining the privacy and security of an individual’s health information. All health plans, health care clearinghouses, billing services, community health information systems, and care providers that transmit heath care data is regulated by HIPAA. [|(Griswold v. Connecticut, 1965)]

Privacy Rights and Technology
People have a right privacy; however with the advancement of technology can privacy rights actually be protected? Today’s technology offers camera phones and videos at anytime. At anytime a video or picture can be shared giving instant approval and an image can be shared with people on the other side of the world. Social media has allowed people to communicate with each other all over the world, but one of the downfalls of this media format is not being able to protect ones privacy. There are many privacy issues with technology and social media. Forbes reported Facebook’s privacy issues are even deeper than we knew. [60] Facebook is now offering facial recognition software for the public to be able to recognize Facebook users with their pictures on otherwise anonymous sites. This new feature is an innovation that has been greatly needed for years in regards to solving crimes and finding missing people. With a feature such as this, If innovative technological features get in the wrong hand they can be used in negative ways. Examples include if face recognition were used by a stalker. Businesses must be extremely careful when developing new tools and all businesses must understand privacy rights and laws. For more information, __ click here __. [61]

The Constitution is an important document that must be enforced with businesses as well as individuals. Businesses must be fully aware and should review the constitution when developing business processes that could affect them. If businesses are not sure how the constitution may or may not affect them, they should take legal counsel for interpretation.

(www.photosecret.com) [59]

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