Evidence (Amendment) (No. 2) Bill

Anonymity, is your time up?

A. Asohan, my fellow comrade from the Stop 114A Committee, quoted me in his article in Digital News Asia regarding internet anonymity. I am an advocate of privacy rights and to me certainly would extend to online privacy. We now live in a world where enterprises are hungry for personal data to be exploited commercially. It can trace, among others, your habits, preferences and history.

Anonymity, is your time up?

 A. Asohan
Oct 26, 2012

 

Anonymity has a rich tradition and can be essential for some forms of online discourse

  • Yet it can be easily abused – should sites like DNA require identification for posting comments?

WE start, with a nod to Dickens, with a tale of two lawyers, both speaking about the contentious amendment to the Evidence Act 1950 that the Malaysian Government has bulldozed through.

The Government first said the law was formulated to bolster prosecution against online defamation and sedition – it later changed its tune to say it was to tackle terrorism and cybercrimes – by making it tougher for online commentators to hide behind anonymity.

[Further analysis of the wording in the legislation however suggests that it would actually encourage anonymity by making all parties up and down the online access supply chain legally liable and presumed guilty.]

In one forum discussion on the Evidence (Amendment) (No2) Act 2012, or Section 114A, Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee, while acknowledging the mischief that anonymous commentators can cause, said that most Malaysians prefer to comment and engage anonymously.

“Clearly we all want to be anonymous online, in order to protect ourselves,” he said.

I was one of the panelists in that discussion, which was moderated by Jacqueline Ann Surin, co-founder and the editor of The Nut Graph. We had worked in The Star together, and I just muttered to her, “Not me,” and she nodded, “Not me either.”

Sure, we old-school journalists may not have understood the concept of personal branding in today’s online world, but we’ve always known about the value of our bylines. A journalist’s byline is our mark – it tells you who we are and what we stand for. Why would we want to hide it behind a shield?

We trust ourselves to be able to be critical without being defamatory, to be able to call a spade a spade without resorting to name-calling, to get to the heart of the matter without the need to insult.

In all my online interactions – whether it is on tech or political sites, whether it is on forums dedicated to role-playing games or my beloved and oh-so-depressing Liverpool Football Club, on my Facebook and Twitter accounts – I use my real name. My thoughts and what I believe in are part of my identity; they make up who I am.

So I never needed to shield myself behind anonymity. Not that I can’t see its value either. Another lawyer at yet-another forum discussion on Section 114A, K. Shanmuga, Member of the Malaysian Bar, pointed out that there is a rich and respected tradition of anonymity in political discourse, dating back a few centuries.

Without going into details, much of British political satire depended on anonymity – or more accurately, pseudonymity, where an assumed name or pseudonym was used instead of the author’s real name. In literature, women had to use male pseudonyms to be taken seriously, let alone get published.

The Federalist Papers, a collection of essays promoting the ratification of the US Constitution, was published anonymously, but was actually written by Alexander Hamilton, James Madison, and John Jay.

“Satirists such as Jonathan Swift and Alexander Pope published anonymously, often for legal and political reasons,” Robert Folkenflik, emeritus professor of English at UC Irvine, writes in theLos Angeles Times.

“Anonymity protected Swift from arrest when a reward was offered for the author of his Drapier’s Letters, pamphlets advising the Irish not to take copper half-pence from England. The novels of Daniel Defoe, Samuel Richardson, Laurence Sterne, Tobias Smollett and Fanny Burney were all anonymous,” he adds.

Whistleblowers and inside sources require anonymity to protect themselves when they reveal information of public interest, especially in Malaysia, where the authorities prefer to shoot the messenger rather than prosecute the perpetrator.

So, granted, anonymity has its place in discourse. But it should never be taken as an excuse to be a jerk. In many cases, anonymous online commentators take it as their due, and end up only proving John Gabriel’s “Greater Internet F***wad Theory,” pardon the language [or the asterisks, rather].

Not just in Malaysia, but throughout the greater online world, there has been a growing movement against anonymity – especially when there is no need for it. And yes, you can criticize the Malaysian Government and some of its decisions without being seditious or defamatory, as Digital News Asia founder Karamjit Singh did when he described the proposed Budget 2013’s RM200 smartphone rebate as stupid.

Social media networks like Facebook and LinkedIn have helped prepare us for this. When you think about it, social media loses at least half its value you don’t use your real identity.

Indeed, Facebook marketing director Randi Zuckerberg believes that putting an end to anonymity online could help curb cyber bullying and harassment.

“I think anonymity on the Internet has to go away,” she said during a panel discussion on social media hosted byMarie Claire magazine, The Huffington Post reports. “People behave a lot better when they have their real names down. … I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.”

Google began cleaning up YouTube’s comments section by encouraging users to post their real names, taken from their Google+ account — since Google requires the real name of someone signing up for a Google+ account,PCWorld reported.

Google’s former chief executive officer and current executive chairman Eric Schmidt has gone on record to describe online anonymity as “dangerous.”

“Privacy is incredibly important,” he said, adding, “Privacy is not the same thing as anonymity.” He went on to saythat “if you are trying to commit a terrible, evil crime, it’s not obvious that you should be able to do so with complete anonymity.”

We have had discussions about anonymity in our comments sections at DNA recently. When we launched the site in May, it was important to us that DNA provided a platform for insightful, interesting, honest and critical conversation about the tech ecosystem.

I am happy to say that has been the case, at least most of the time. When we noticed some “this sux” and “that sucks” comments coming in, we implemented “ground rules,” advising readers that we will delete comments that do not abide by them.

There have been some that have breached this, but we haven’t yet taken the prerogative to remove them, since such strident calls for attention have largely been drowned by the more intelligent conversations going on around them.

But lately, we’ve noticed what can only be described as “questionable comments” being posted in stories about entrepreneurs and startups in our Sizzle/ Fizzle/ Slow Burn section. “Questionable” because they were posted by “silhouettes” and/ or had content which made sense only if they came from the competitors of the companies in question.

That’s just not cricket. It’s sock puppetry of a different nature or name, but smelling just as foul. And we also realized that as we cover more companies, and as the start-up space here becomes more mature and crowded, as companies vie not so much on different ideas, but on different implementations of essentially the same idea, the competition is only going to get stiffer, and perhaps uglier.

And such foul play may find expression in our comments section.

We don’t want that to happen. One way of preventing this is to make identification a prerequisite for posting comments. We are loath to do so, but will take what action is needed to preserve the integrity of the site, and the generally high level of discourse that takes place here.

But we would like to hear from you, dear readers. Tell us if you would support such a move if it came to the crunch, and why; or if not, why not. Give us the pros and cons. Let’s hear from you.

And yes, you can do so anonymously, if you prefer. 🙂

When I said, “Clearly we all want to be anonymous online, in order to protect ourselves”, it wasn’t referring to the right of anonymity to posting comments and opinions online. I wasn’t referring to the right of anonymity in the narrow sense.

To me, the right of anonymity is the right to control your information online. I don’t want to be posting my full name online. I don’t want my potential clients to be googling my name to find pictures of me partying in my heydays. I would like to use an online pseudonym on Twitter and blog so that, among others, potential clients/employers/competitors don’t know what I do daily, who my family members are etc.

I think the video below summarises the problem without the right of anonymity.

The video above basically shows a gifted clairvoyant who finds out about numerous information above a few people he met. The gifted clairvoyant can be seen “reading” those people’s lives accurately.

[Read below for spoiler]

It was later shown that the gifted clairvoyant had a team of people scouring the Internet for information of those people.

拉昔巴星:114A苛刻‧應有更多機制保護無辜

I was quoted in Sin Chew newspaper regarding the weakness of S. 114A Evidence Act 1950.

拉昔巴星:114A苛刻‧應有更多機制保護無辜
2012-10-24 08:22
布城23日訊)今年8月1日通過的證據法令114A條文,雖然經過總檢察署多次召開閉門會議討論,但仍無法消除各界人士對此條文的爭議。

應站在公眾立場考慮

【新潮】就像沒有一個女人會嫌自己瘦一樣,從來沒有一個男人會嫌自己的“小弟弟”過大。

大馬律師公會刑事法委員會主席拉昔巴星認為,檢察司應該站在公眾的立場考慮,而114A條文中應該有更多的防禦機制來保護無辜的人。

“但反過來想想,如果114A條文需要更多的保護機制以免錯誤使用的話,那為甚麼我們還要保留這樣的一個條文呢?”

他今日受邀在總檢察署主辦的114A研討會的發言時,提出上述看法。

總檢察署沒收財產(forfeitureof property)單位主任安森在回應其論點時多次強調,114A條文雖是以事實推定(presumption of fact),但若沒有其他證據支持,這也是無法入罪的。

他指出,事實推定並非法律新詞,根據基本常識判斷的情況也不只是應用在114A的情況中。

“像在一個人身上搜出大量毒品,我們也會推定他是販毒者。”

採用事實推定不恰當

對此,拉昔巴星反駁道,在114A中採用事實推定並不恰當,毒品不容易取得,栽贓嫁禍相當困難。

“但我們可以輕易地取得某人的手機發出誹謗性、煽動性言論陷害他人,而如果這個人根本不記得誰碰過自己的手機而無法找到時間證人,那他就被無辜冤枉了。”

他強調,資訊科技的發展如此迅速,設立114A條文是非常苛刻(Draconian)的。

針對拉昔巴星對114A的批判,他解釋,檢察司在收集證據時會考慮到當時的情況與背景才做出推斷。例如某人用電腦發出誹謗言論,但他所使用的電腦並非他專屬,那這項證據將非常薄弱,不足以提控某人。

“嚴峻的情況便需要採取苛刻的管制方法。”

瑪麗亞特:事實推定更易取真相

專精於知識產權與知識管理的律師瑪麗亞特認為,事實推定是為了更易取得真相。

“事實推定不是自動發生的,檢察司需要蒐集證據,確定器材的所有人後,才由被告舉證保全自己的清白。但就算某人被證實為發出訊息的器材的所有人,他也未必有罪。

單是這一項證明是無法讓他入罪的。”

但她指出,如果沒有114A條文的話,主控官同樣能夠援引114條文提控被告,而他們也能夠取得同樣的成果。

瑪麗亞特也是論壇的3名嘉賓之一,她認為大馬律師公會代表的立場強硬,但他們以公眾利益出發為考量,情有可原。

但她也認為,各方的爭議在於對114A條文有所誤解,他們必須詳細解讀整個證據法令,才能瞭解為甚麼要有114A條文。

“114A比114條文更明確,是因網絡上有人採用匿名方式犯罪而設的,但這項條文中並沒有列明只限用於資訊科技中。”

研討會分2部份進行

這場由總檢察署舉辦的研討會共分兩個部份進行,前半部為安森與扎布里講解114A條文的應用,以及數碼鑑證科無法找出電腦罪案兇手的困境,後半部則由三位論壇嘉賓針對114A的爭議發表看法。

研討會獲得來自律師、大學代表以及電訊服務供應商的響應,出席者近百人,會場幾乎座無虛席。

吳文徉:被告者難證明清白

出席研討會的律師吳文徉指出,以一名律師的立場來看,被告一旦被證實為通訊器材的持有者,如何證明自己的清白對他們而言是困難的,因為一般人大多不具法律常識。

而雖然無辜者事後可能因為證據不足而不被提控,事實推定指他涉罪的話,已經足以導致讓此人名譽受損。

馮正良:危害資訊科技發展
114A應取消或重擬

吉隆坡律師公會資訊工藝委員會主席馮正良認為,114A條文應該被取消或撤回重擬,因為它將危害資訊科技的發展。

他指,用戶創建內容(user-generatedcontent)的網絡平台依賴網民評論和留言來獲得瀏覽率,繼而獲得廣告收入。

他舉例,一家拍賣網站裡若有人蓄意誹謗某一個賣家,在114A條文下,該賣家可以向承載這個信息的網站提出訴訟,無辜的網站管理員就得舉證以保清白。

“誰還敢讓別人在自己網站上留言?被誹謗的人可能會趁機向較富有網站管理人要求賠償,而不是追究真正的誹謗者。”

馮正良也說,以往可以匿名留言的選項在許多網站都被取消了,若繼續推行這條例,網民恐怕會被迫提供更多個人資料,才能註冊成為網站用戶來留言和評論。但這不會減低網站管理人惹官司的可能性。

“我們可以參考澳洲的版權法,即在可能被控上法庭前,發出警告,並賦予人們要求管理員撤下誹謗性信息,三次警告後就能採取法律途徑來解決。”

扎布里:檢舉網絡罪案
數碼鑑證不能找出‘兇手’

大馬電子保安機構(Cyber Security Malaysia)數碼鑑證組高級官員扎布里在114A條文研討會上說,在檢舉網絡罪案時,數碼鑑證不能當結論性證據,因為它只能找出“凶器”,而非找到“兇手”。

“找到發放誹謗性或不實信息的產品後,還要證明產品的主人就是發送者,這環節很困難,所以我們處理的7個網絡罪案訴訟中,有5宗個案是不成立的。”

他也說,該機構進行調查時有辦法取得用戶的瀏覽歷史、網絡談話記錄、緩衝文件(Cache File)及網絡帳號等。

可透過數碼鑑證證明清白

扎布里指出,有的人因為電腦中毒或遭駭客入侵,利用自己的電子產品或賬戶散播誹謗性言論而遭提控,也可以透過數碼鑑證來證明自己是清白的。

“一旦我們發現被告的電子產品有被外界入侵的跡象,我們將告知檢控官說證據太薄弱,建議他們不要檢控。”

他解釋,該機構在追縱信息源頭時,如果最後找到的是如網咖、嘛嘛檔或餐廳等公共的代理伺服器(Proxy Server),調查已經無法繼續。

“所以114A條文其實是檢察司最後的王牌,在我們無法繼續追查時,要求電子產品或網站的主人來證明自己清白,才不會讓網絡罪犯逃之夭夭,繼續幹案。”

(星洲日報)

Section 114A, Evidence Act 1950: Its Impact on Your Business

I will be speaking at Federation of Malaysian Manufacturers’ (FMM) event on 114A below.


Click on image for larger view

Understand the impact of Section 114A on your business and learn about network security and content filtering to protect your business.
Date : October 30, 2012
Time : 08:30 AM – 02:00 PM
Venue : Kuala Lumpur – Wisma FMM, Bandar Sri Damansara
Country : Malaysia

THIS SEMINAR IS FOR YOU IF YOUR COMPANY:
– Provides free Wi-Fi in its premise
– Opens its website to public comments, e.g. online forums
– Has e-commerce sites
– Engages with customers via social networks e.g. Facebook, Twitter and blogs
– Allows your employees to access, from office computers, social media sites or post comments on public forums

WHO SHOULD ATTEND
CEOs, Managing Directors, General Managers, IT Managers

DATE, TIME & VENUE
Tuesday, 30 October 2012 | 8.30 am – 2.30 pm
Wisma FMM, No. 3 Persiaran Dagang PJU 9, Bandar Sri Damansara, 52200 Kuala Lumpur

PROGRAMME

08:30 Registration
09:00 Opening Remarks
by YBhg Datuk Paul Low
FMM Vice President
Session 1: About Section 114A
09:10 Section 114A of Evidence Act, 1950
by Mr Lim Chee Wee
President, Malaysian Bar
09:40 Government’s Perspective of Section 114A Evidence Act 1950
by Attorney General’s Chambers*
10:10 Questions & Answers
10:30 Networking Coffee Break
Session 2: Section 114A and Your Business
10:50 Section 114A and My Business
by Mr Jahabar Sadiq
CEO, Malaysian Insider
11:20 Section 114A and Social Media Tools
by Mr Foong Cheng Leong,
Co-Chairman, KL Bar Information Technology Committee
11:50 Questions & Answer
Session 3: Protecting Your IT Network Against Section 114A Violations
12:10 Preventing Violations Against Section 114A Through Secured Cloud Gateway
by Mr KY Lee, Regional Director-ASEAN,Zscaler
12:40 Regain Visibility and Control – How to securely manage your workforce
by Mr Victor Lo, Senior Regional Manager, Technical Services, Trend Micro Inc.
13:10 Questions & Answer
13:30 Lunch / End of Programme

* invited

PARTICIPATION FEES
FMM Members: RM 200  |  Non-Members: RM 260
Includes lunch and refreshments

SPEAKERS’ PROFILE Download

For more information, please visit http://www.fmm.org.my/

What the hack happened?

The Star quoted me in the following article on 19 August 2012:-

Sunday August 19, 2012

What the hack happened?
By LISA GOH
lisagoh@thestar.com.my

Losing your personal particulars to hackers can lead to financial losses, heartaches, loss of reputation – and sometimes friends, too.

IT starts out so innocently. A simple vote request by an acquaintance for a competition on Facebook; one click and law student Sharlyn J. discovers she has been hacked and locked out of all her social media accounts emails, Facebook, Twitter, Skype and MSN Messenger.

“I clicked on the link and a new window popped up. It looked exactly like Facebook – the colour and the fonts – but I didn’t double check the URL. That was my mistake.

“The site required me to type in my email address and password. I was a little reluctant at first but the girl kept pleading for me to vote for her so in the end, I did. Right after that, I knew something was wrong. I got locked out of all my accounts,” says Sharlyn, 19, of the incident last May.

If that wasn’t bad enough, within the hour, she received a text message that said “Hi Sharlyn. Your full name is , your IC number is , your IP address is , you are a student at college etc.” The hacker demanded money in exchange for getting her accounts back.

Gone in a second: It’s a nightmare for anyone who has discovered that his or her personal particulars have gone into the wrong hands.
“He/she even said I’m not asking for much, just RM300. You can report to the police, but there’s no point. I can’t be tracked.’

“That person had all my personal particulars. I was really freaked out. I had just started college and was living on my own. What if he had my home address as well?”

Failing to get a response from Sharlyn, the hacker then sent another text message, offering her a discount of RM150.

“I called my mum and told her what happened. I was really scared but I ignored him. I lodged a police report and opened new accounts the next day to tell all my friends to delete the old ones,” she says.

However, even weeks on, the hacker was still assuming her identity and chatting with her friends – as she found out later. She never got any of her accounts back.

In other instances, the identity thief doesn’t come to you for money. He goes to your friends, as local film producer Wendy Wong discovered.

Early last month, Wong sent her notebook for servicing. After getting her notebook back two weeks later, her problems started. When she logged into her email account, there was a prompt saying that the account was in use.

She didn’t think much of it, but then came phone calls asking if she was all right and if she was stranded in Spain.

Her email account had been hacked. Assuming her identity, the hacker emailed all her contacts to tell them she had lost her wallet and asked them to send money so she could settle her hotel bill in Spain. The hacker asked her contacts to send her RM10,929 (2850) via Western Union to an address in Madrid.

“I was in Kuala Lumpur all the while. Good thing some of my friends called me to check before sending money over. I had friends who were already planning to transfer the money,” Wong says, adding that she was alerted of the situation by an mStar journalist who had called her to ask if she was indeed stranded in Spain.

Several attempts to change her password failed as the hacker made repeated assaults on her account. Wong has since lodged a police report and alerted the customer service of her email account provider.

“This has affected my reputation. Those who know me well would know I would never go around asking people for money. But what about those I have just met, or are just starting a business partnership with? What would they think of me?”

For that reason, Wong held a press conference early this month to clear her name and to alert all her contacts of her predicament.

“It’s not so easy for me to just get another email address as that’s where my contacts reach me. But it looks like I don’t really have much choice now,” she laments.

When it comes to hacking and identity theft, the most important thing is doing everything you can to make sure it doesn’t happen in the first place. – Nigel Tan

Symantec Malaysia systems engineering director Nigel Tan says that when it comes to identity theft, more often than not, it’s an opportunistic crime, and it’s a two-step process.

“Someone steals your personal information, then uses that information to impersonate you to commit fraud. It’s important to understand this two-step approach, because your defences also must work on both levels,” says Tan, who is Symantec’s principal consultant for Asia South.

According to the Symantec Internet Security Threat Report for the year 2011, a total of 232 million identities were breached worldwide, and of that, 80.5% were by hackers.

In 2011, the Malaysian Communications and Multimedia Commission (MCMC) recorded a total of 199 hacking complaints, and six identity theft complaints. For this year up till Aug 9, MCMC recorded 141 hacking complaints, with no identity thefts as yet.

Under the law, hacking itself is an offence under the Computer Crimes Act 1997, says KL Bar Information Technology Committee co-chairman Foong Cheng Leong.

Section 4 of the Act, for example, finds “unauthorised access with intent to commit or facilitate commission of further offence” a crime, whereby a person convicted could be liable to a fine not exceeding RM150,000, or to imprisonment for a term not exceeding 10 years, or both.

Further offences, such as cheating, can be pursued under the Penal Code, Foong explains. Victims can also file civil suits if the perpetrator is known to them.

However, identity theft could prove to be more than a mere inconvenience for victims, in light of Section 114A of the Evidence Act 1950, as it holds the account owner responsible for any material published from his/her account, “unless the contrary is proved”.

This amendment to the Act, passed in Parliament in April this year, drew heavy objections from various quarters.

On Thursday, Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim announced that the Cabinet has decided to maintain it.

Hacker’s victim: Wong is worried that her reputation may have been marred by the stranger’s doings.

But what drives hackers to hack and steal another person’s identity?

Where previously the motive would have been to gain fame, Tan says more often than not these days, it’s for financial benefits. Social media sites have also not been spared.

“Hackers want to get into the social media because they want to exploit that circle of trust. When you see an email or link sent by someone you know, you’re more likely to respond,” he says.

His advice?

“Never ever click on links. Open a new browser and type in the URL. If you get a phone call from a bank saying your account has some issues, and they require your personal information, hang up and call the bank directly and ask them if they really have a problem with your account,” he says. (Refer to chart for more Do’s & Don’ts.)

He also advocates using different passwords for different accounts and changing them regularly (once every 90 days is ideal). Using the two-factor identification facility (where both a password and a code sent to your mobile is needed to access an account) where available would also act as a deterrent.

“It’s important to understand how easily personal data is linked these days. Information that can be easily found on Facebook can include your place of birth, your mother’s name and other personal details. And these are usually the security questions banks use.

“Personal information flows so easily from one thread to another, and hackers are always waiting to exploit that,” he says.

And sometimes, it’s all a matter of being aware of the personal information you give out. “When a site or a person (even in legitimate circumstances) asks you for certain personal information, just stop and just ask yourself, Do they really need that information and am I comfortable in giving that information?’

Give it some consideration, and if you don’t think they do, then don’t give it. “When it comes to hacking and identity theft, the most important thing is doing everything you can to make sure it doesn’t happen in the first place.”

‘Guilty until proven innocent’ law applies to Umno Youth in Facebook probe

I was quoted by Malaysia Insider on this article regarding the applicability of S. 114A of the Evidence act 1950 on the incident regarding UMNO Youth’s Facebook page.

‘Guilty until proven innocent’ law applies to Umno Youth in Facebook probe

By Ida Lim
August 22, 2012

KUALA LUMPUR, Aug 22 — The burden of proof is on Umno Youth to show that it is not the publisher of controversial remarks suggesting that a vote for Pakatan Rakyat (PR) will result in Christianity becoming the country’s official religion, due to recent amendments to the Evidence Act, lawyers have said.

Umno Youth has claimed that the person who put up the poster with the controversial remarks was “unauthorised” to do so and that the page was not its official Facebook page.

The poster, which was uploaded last Saturday and taken down the same day, appeared to suggest that votes for federal opposition Pakatan Rakyat (PR) will cause Islam to be replaced by Christianity as the country’s official religion.

It had read: “Jika anda setuju untuk jadikan KRISTIAN sebagai agama rasmi persekutuan Malaysia, teruskan sokongan anda kepada Pakatan Rakyat. (If you agree to make CHRISTIANITY the official religion of the federation of Malaysia, continue supporting Pakatan Rakyat.) ‘God bless you my son’.”

If Umno Youth is brought to court over the “unauthorised” Facebook post, it would be the test case for the newly-enforced Section 114A of the Evidence Act that has already seen widespread opposition from the public.

Section 114A makes even coffee shops offering free Wi-Fi services liable for any defamatory or criminal acts of customers using computers at their premises.

The new law creates a presumption that any registered user of network services is presumed to be the publisher of a publication sent from a computer linked to that network service, if he cannot show otherwise

The Section also provides that any “person whose name, photograph or pseudonym appears on any publication depicting himself as the owner, host, administrator, editor or sub-editor, or who in any manner facilitates to publish or re-publish the publication is presumed to have published or re-published the contents of the publication unless the contrary is proved.”

Civil liberties lawyer Syahredzan Johan told The Malaysian Insider that Section 114A would impose a presumption that Umno Youth had published the poster, but notes that “this factual presumption is not tested in court” yet.

“But say, for whatever reason, Umno Youth is charged under the Sedition Act for promoting ill will between the Muslim and Christian communities, the factual presumption would operate,” Syahredzan said.

“All the prosecution would need to prove is that the Umno Youth is stated to be the owner or administrator of the Facebook page,” he said, noting that it is “quite easy to do so” as the page “represents itself as Umno Youth’s”.

Once that is proven, Umno Youth would be “presumed to be the publisher of the post” and would then need to “rebut this presumption”, he added.

“This is a perfect example of the absurdity and injustice of Section 114A in operation.”

The prime minister had on Twitter last week said his Cabinet would review the law after several organisations ― including the Malaysian Bar ― chose to black out their websites to signal their opposition to the law.

A day later, however, Information, Communications and Culture Minister Datuk Seri Dr Rais Yatim announced that the law will stay.

Foong Cheng Leong, the Kuala Lumpur Bar IT committee co-chair, agreed with Syahredzan, saying that “if we follow (Section) 114A, looking at subsection 1, it seems that the presumption of fact is that Umno Youth is the publisher of the poster.”

He said there is an “impression that it’s a legitimate Pemuda Umno page”, saying that the Facebook page, which has over 50,000 “likes”, features Umno Youth’s logo and the party president Datuk Seri Najib Razak’s photograph.

Foong said that Section 114A is unclear on a number of things, saying that it “does not say when the presumption is rebutted.”

“We don’t know if a police report is sufficient to rebut the presumption,” he said, saying that “we’re left at the unknown stage.”

“Can the media go and tell everybody that Pemuda Umno is the publisher of the poster? Can the media publish it as fact because in the law it’s presumed as fact?” he asked.

When asked if there was any law for Umno Youth to fall back on in court, the lawyer said there is “no exemption under (Section) 114A” and “the only thing they can do is come out with proof it’s not them.”

Lawyer Faisal Moideen shared Foong’s view, saying that “making a police report may not be enough because it seems to be a bare denial.”

However, he defended the law and stressed that it does not impose a presumption of guilt but only the presumption of fact of publication.

“At the end of the day, it doesn’t mean they have committed a crime,” he said, adding that “it takes more than just publication to make a person guilty.”

Based on his reading of the law, he said “you don’t have to show who did it, you have to show you didn’t publish it” to rebut the presumption.

Tweetjacked

This article appeared on Rage following my interview with The Star.

Tweetjacked

By KEVIN TAN and PHYLLIS HO

alltherage@thestar.com.my

ONE fine day, Chee Yun Sam, a 22-year-old model, started getting a barrage of angry tweets and messages from his friends.

Apparently, Chee had posted something rather racist on his Twitter account, and a lot of people weren’t taking too kindly to it.

Only problem was – and you guessed it – he had no idea what he had supposedly posted.

Chee had become a victim of “tweetjacking”, the popular new prank that’s making stuff like wedgies and the ol’ chalk-on-the-chair trick like SO last millennium.

What happened was a friend of Chee’s managed to get his hands on his smartphone, and used Chee’s Twitter account to post a joke.

That’s how most tweetjacks happen. You “hijack” someone’s Twitter account (or Facebook) and post something embarrassing, making it seem like it came straight from the account holder.

It’s usually innocent stuff, like confessions of love for a mutual friend (or Rebecca Black, which is equally embarrassing), or probably something gross like “I smell my socks every morning”.

But unfortunately for Chee, his friends didn’t just post some innocent joke.”It wasn’t a laughing matter at all,” he said. “My friend posted something that was quite racist. And people didn’t know I was being tweetjacked! Some of them took it really seriously and were very upset.”

While we at R.AGE always love a good, harmless prank (like the time we moved Sharmila Nair’s car to a different basement level. That sure taught her not to leave her keys lying around…), it seems tweetjacking, Facebook-jacking (which goes by a rather more unsavoury term on the Internet) and all kinds of social media-jacking can quite easily get out of hand.

And given how integral social media has become to so many of our lives and careers, your next tweetjack might not turn out to be so funny after all.

Protect yourself!

Denielle Leong, 18, has been Facebook and Twitter-jacked many times by her college buddies and even her boyfriend.

“Well on Facebook you’d normally see pretty disgusting stuff like ‘I like to lick my armpits’. Or sometimes it’ll be openly praising someone who is hot. It’s very different on Twitter, for some reason,” she said.

On Twitter, her account has been hijacked by her friends several times to post some flirtatious tweets, which obviously led to some rather awkward responses from her male friends.

“Some people really do retweet and buy everything they see, even the most random things. It just shows how people online are so gullible,” she said.

But probably the main reason why social media hijacking is becoming so common, is simply because the opportunities are everywhere now. An idle smartphone at a party, a Facebook account logged-on at the college library, an iPad that isn’t password protected… They’re all hijacks waiting to happen.

Despite having been hijacked so many times, Leong admits that she doesn’t always log off her accounts after using them on laptops and computers. She might be making herself a prime target for another prank, but she says she doesn’t mind – as long as it’s nothing harmful.

Lawyer Foong Cheng Leong, 31, the Kuala Lumpur Bar Council’s IT committee co-chairman, agrees that social media-jacking is actually “harmless”.

The problem is – as it is with all pranks – some people tend to go overboard, inadvertently posting things that are too sensitive, or sometimes even unlawful. “Publishes that are unlawful include posts that are deemed as defamatory, seditious, obscene, malicious – the breaking of the law in section 233 of Communication and Multimedia act,” said Foong.

Basically that means if you post something as part of a tweetjack that breaks those laws, you – and the friend whose account you jacked – could potentially face a fine of up to RM50,000, a jail sentence of up to one year, or both.

And with the recent amendments to the Evidence Act, Foong says that social media users should protect their accounts and monitor their publishes even more carefully. “Now, all the more young people have to be aware of their publishes, because every post will hold the publisher (account owner) accountable,” he said. “Only the account owners will be considered as the publisher until proved otherwise.

“That’s when tweet-jacking can be a problem – if the tweetjacker does not own up and admit that he or she is the person who published the (unlawful) post,” he added.

But even if you aren’t breaking the law, a social media hijacking can still do a lot of damage. Imagine for instance, if your employer stumbles upon a tasteless joke on your Facebook or Twitter account.

Joshua Desmond, 26, who, funnily enough, works as a social media planner in a digital advertising firm, was the victim of one particularly tasteless tweetjacking.

“I don’t get tweetjacked very often, but it happens from time to time,” said Desmond. “The tweets are normally just for laughs.”

But then one day, the stuff got real.

A friend used Desmond’s account to make a joke about his sexuality, which most of his followers understood to be a tweetjack. But there was one friend who didn’t get the joke, and decided to tell Desmond’s parents about it.

“My dad just rang me up one day and asked me about it, and he sounded very serious,” said Desmond. “I still remember how upset he was when he called me.

“Even after I convinced them it was only a prank, they were still upset and told me not to let it happen again. It wasn’t something funny to them at all.”

Password protection

Apart from the odd prank that gets really embarrassing, or the unlawful post that could get you in trouble with the law, social media hijacking could also put your personal safety at risk.

Foong advises people to keep personal information like house addresses, mobile phone numbers, and PIN numbers off social media, because if someone was able to hijack your account to make a silly joke, someone could also potentially access that information for something more malicious altogether.

In any case, it’s important to not only protect your smartphones and to always log out from your social media accounts, but also to make sure you have a safe password.

According to Foong, there is actually a rather common set of passwords which people tend to choose from.

“Many people use common passwords like ‘abc123’, and those passwords are easy to crack,” said Foong. “Believe it or not, the most common password in the world is ‘password’.”

Unfortunately, Sarenraj Rajendran, 22, an American Degree Programme student, had to learn that lesson the hard way.

One of Sarenraj’s friends somehow managed to guess his Facebook password, but that wasn’t such a big deal. Things turned ugly when he found out that Sarenraj used the same password for his Internet service account.

As a prank, the friend made all kinds of changes to his account settings, and even purchased some upgrades – additional email storage and an online anti-virus package. They were only 17 back then.

“I got to know about it when my ‘hijacker’ friend went around telling other friends, and even presented the proof of purchase to brag about what he had done.”

Social media expert David Lian, the Asia Pacific Digital Lead of PR agency Text 100, says the integration between all the different forms of social media makes these hijackings potentially much more damaging.

“These days, all your social networks are connected. Facebook, Foursquare, Instagram… Even your email addresses. If someone has access to one of your accounts, they could easily have access to all your accounts.

“They could even have access to credit card information on some of these applications,” said Lian.

The problem with us running this story, of course, is that people now know that “Tweet-jacking may not be dangerous if people know the limit. But at the end of the day, everyone should prevent themselves from the risk of the dangers of it. This really taught me to really be careful when it comes to protecting my personal social media. I can’t let things like that happen again,” said Chee.

Govt stealthily gazettes Evidence Act amendment, law is now in operation

I was quoted by Digital News Asia on what internet users and website owners should do in view that the Evidence (Amendment) (No. 2) Act 2012 is in force.

A. Asohan
Aug 08, 2012
  • Controversial law has been in effect since July 31 after ‘stealth’ move by Govt
  • Civil society continues its struggle to see the law revoked

THE Malaysian Government has gone ahead to gazette a controversial amendment to the Evidence Act 1950 despite the objections and concerns of the online community and civil advocates, who have said it would have a chilling effect on freedom of expression.

Section 114A to the Evidence Act was gazetted by de facto Law Minister Mohamed Nazri Abdul Aziz and has been in operation since July 31, according to a notification on the Attorney-General’s Chambers website(Click here for the PDF documentation).

“The law can be enforced now,” said Masjaliza Hamzah, executive director of Center of Independent Journalism (CIJ) in Malaysia, which has been spearheading efforts to see the legislation revoked.

However, she noted that even if a law has been gazetted, it may be impossible to enforce it if those who are responsible for it are not trained and are not ready to implement it. “This was the case with the Domestic Violence Act which was passed and gazetted in 1994, but was not implemented until 1996 after women’s groups campaigned to put pressure for that to happen,” she added.

Law Minister Nazri gazetted the law despite his own deputy Datuk V.K. Liew conceding in June that more discussions were needed after the CIJ had handed him a petition with more than 3,000 signatures.

“Sometimes, laws can be gazetted quietly — unnoticed, you could argue it’s almost by stealth — and we only know they exist when they are implemented,” Masjaliza told Digital News Asia by email.

“Many people in Selangor and Federal Territory did not know that Muslim women cannot contest in beauty pageants under the Syariah Criminal Offences (SCO) laws until five young women were arrested for taking part in a Miss Petite contest.

“The fatwa banning this was gazetted and therefore can be enforced under the law and these women were arrested for breaching a fatwa. It was only at that point that people heard that there was the SCO Enactment in Selangor and the SCO Act in the Federal Territory, and that they apply to Muslims in those states,” she added.

Section 114A, otherwise known as Evidence (Amendment) (No. 2) Act 2012, was passed by the Dewan Rakyat and Dewan Negara in April.

Under Section 114A, an Internet user is deemed the publisher of any online content unless proven otherwise. It also makes individuals and those who administer, operate or provide spaces for online community forums, blogging and hosting services, liable for content published through their services.

“This presumption of guilt goes against a fundamental principle of justice – innocent until proven guilty — and disproportionately burdens the average person who may not have the resources to defend himself in court,” the CIJ has said.

“The amendment’s wide reach will affect all Internet users, websites which provide space for online comments, and any business premises which give free Wi-Fi access to their customers.

“In addition, the new amendment was passed despite the fact that existing laws — including the Computer Crimes Act 1997, Sedition Act 1948, Defamation Act 1957, and Section 233 of the Communications and Multimedia Act 1998 — have been used to arrest and charge in court those who commit defamation, criminal defamation, fraud and sedition online,” it said.

Govt knows best?

Malaysia’s law-making process can be very opaque and undemocratic, Masjaliza lamented.

“People who are affected by these laws — and we are many — are not consulted at all during the drafting process. We have no idea there’s a draft bill coming, and some of us may hear about it only when it’s discussed in Parliament, and only if the media covers it,” she said.

“Then there’s a period of silence. Are Malaysians expected to go to the Attorney-General Chambers’ website every day to check if any laws have been gazetted recently and see how they apply to them?

“This is what happens when the ruling government doesn’t believe in meaningful consultation with the public before they enact any law,” she added.

After a furore earlier this year over amendments to Elections Offences Act, later revoked, the Malaysian Government promised that public consultations would be the order of the day for future laws.

“It sounds a bit hollow … now,” said Masjaliza. “Who will be consulted? Will it be a select few? How comprehensive is that process going to be?”

Lawyer advises caution

Meanwhile, a lawyer who has been monitoring the issue has advised caution on the part of Internet users and website owners.

Users must ensure that their Internet connection or devices are properly secured, said Foong Cheng Leong, co-chair of Kuala Lumpur Bar Information Technology Committee.

“They should also frequently update their anti-virus software, use strong passwords and refrain from retweeting or republishing anything dubious or unverified,” he said.

“As for website owners, they may want to consider monitoring their comments,” he said.

Foong said that website owners may want to:

1) Disable anonymous users from posting any comments.

2) Revise the terms and conditions for use of their websites, to perhaps include an indemnity clause to compel the user to indemnify the website owner in the event of any damages. They may also choose to include a clause prohibiting users from posting comments relating to religion, politics, etc. and that anyone who does that will be banned or have his or her posting removed.

3) Remove Facebook’s comments function as website owners do not have control over the contents posted.

4) Only allow registered users who have provided all their personal details to post comments.

5) Owners of low-traffic websites may consider reviewing comments before allowing them to be posted.

6) High-traffic websites (e.g. forums) may consider appointing someone to monitor or track all postings. Alternatively, they can have a user rating system where users can rate whether a posting is offensive and if so, it gets suppressed/ removed. YouTube has this function.

“The registered account holders of Internet services [such as UniFi] may want to reconsider sharing their Internet connection with others,” Foong added.

Internet Blackout Day still on

Despite the gazetting of the law, civil society is going to go ahead with the “Internet Blackout Day” for Aug 14 which aims to create awareness among Internet users about the negative impact of the amendment on online expression.

Taking its cue from similar efforts in the United States and New Zealand in support of Internet freedom, on that day, Internet users who visit participating websites will see a pop-up window which contains the message of the campaign. In addition, Netizens can change their profile pictures/ avatars on Twitter and Facebook to black, or use downloadable images provided by the CIJ.

“We [still] hope to get a buzz around Section 114a and how it’s going to affect the average Internet user, and urge people to do something. We must do something, even if the law’s been gazetted,” said Masjaliza.

“Once a critical mass is aware of the law and its implications on them, then it’s easier to get people to support actions under the ‘Stop 114A’ campaign,” she said.

“If more people are talking about this and are outraged that this was done without their knowledge, then we will have a good base of support for the next course of action,” she added.

Foong concurred. “It is not too late; we can always lobby for the repeal of the amendment. Please take part in the Internet Blackout Day initiated by the CIJ.”

The Internet Blackout Day has received positive response from the Internet community. Businesses which rely on the Internet such as the auction store lelong.com.my, online forum cari.com.my, and entertainment portal gua.com.my have signed up to show support, the CIJ said.

Other key supporters include online news sites such as Malaysiakini and Digital News Asia, bloggers such as Niki Cheong and Nat Tan. This initiative is also supported by civil society organisations such as SUARAM and the Women’s Aid Organisation.

For more information about the Internet Blackout Day and to take part in the campaign please visit:
1. The official blog at stop114a.wordpress.com
2. The Facebook page https://www.facebook.com/evidenceamendmentact.
3. Stop 114A’s Twibbon page for Twitter: http://twibbon.com/join/Stop-114A
4. Stop 114A’s Twibbon page for Facebook: http://twibbon.com/cause/Stop-114A/facebook

For additional information, please contact CIJ via e-mail at cijmalaysia@gmail.com or call +603-4023 0772.

Saifuddin backs repealing law that could curb Net freedom

Following the Stop 114A forum, the Malaysian Insider reported the following:-

Saifuddin backs repealing law that could curb Net freedom

UPDATED @ 11:28:17 PM 11-08-2012 By Ida Lim August 11, 2012

KUALA LUMPUR, Aug 11 ? Deputy Minister of Higher Education Datuk Saifuddin Abdullah today said he supports repealing the controversial Section 114A of the Evidence Act 1950, widely seen as an attempt to curb Internet freedom, despite the clause only being four months old.
The amendment to the Evidence Act, which was passed in Parliament on April 18 after it was first tabled on April 10, is now in force after it was gazetted on July 31.

“I am all for repealing Section 114A,” Saifuddin told reporters today, saying that there should be an alternative to the legal clause.

Earlier, the Umno supreme council member had spoken at a public forum on whether Section 114A signals the end of internet freedom.

“As a Barisan Nasional guy who supports democratic reforms and… a mature democracy, I take this as a hiccup,” he said.

The other forum panellists were lawyers Faisal Moideen, Foong Cheng Leong and K. Shanmuga.

Critics have pointed out that Section 114A is too broad and contains several weaknesses, such as assuming that an administrator of a website, or an owner of a computer, is the publisher of the content unless it can be proven otherwise.

They have also pointed out that the clause is important in cases involving defamation or the Sedition Act — which the government has promised to repeal.

Although Faisal acknowledged that part of the clause was too broad when it was drafted, he said that Section 114A does not create an offence or impose a presumption of guilt.
He argued the presumption of “fact of publication” is not enough to prove one guilty in court, saying “if other elements of the crime or claim is not proven, the claim will still fail.”

He conceded that “if it is a sole element of the crime, it could be a problem.”

Shanmuga pointed out the practical results of the clause, saying that the alleged publisher would have to spend money on lawyers and suffer reputation loss due to the presumption.

“To say we can go to court and disprove the burden doesn’t reflect the reality that will be faced by an ordinary man on the street,” he said.

He also said that the Parliament had passed the proposed law within a few hours although “this was not an urgent Bill”.

Foong claimed that Section 114A “is like a tool to beat Internet users up,” saying this doesn’t match with the BN administration’s move to appeal to the Internet crowd such as the use of social network site Twitter.

The forum was jointly organised by the Bar Council’s National Young Lawyers Committee (NYLC), Malaysian Centre for Constitutionalism and Human Rights (MCCHR) and the Centre for Independent Journalism (CIJ).

CIJ has slammed the clause for presuming guilt instead of innocence and for making service providers liable for hosting content published by others.

The Internet Blackout Day campaign launched by CIJ will take place on this August 14.

牵制互联网自由 赛夫丁支持废114 A条文

Following the Stop 114A forum, the Nan Yang reported the following:-

牵制互联网自由 赛夫丁支持废114 A条文

 2012-08-11 21:07

(吉隆坡11日讯)高等教育部副部长拿督赛夫丁博士今日表明支持废除1950年证据法令下增设的114A条文,因为此条文有牵制互联网自由之意。

将向首相传达

他说,巫青团长凯利也对这项于今年在国会下议院通过的修正法令有微言,所以他将跟凯利讨论此问题,再设法向首相拿督斯里纳吉传达。

赛夫丁今日在大马律师公会礼堂出席1950年证据法令114A条文论坛时,表达了本身的立场。

这项论坛是大马律师公会年轻律师委员会、大马宪法主义及人权中心(MCCHR)和独立新闻中心(CIJ)所主办的系列批判思维论坛之一。

赛夫丁是论坛主讲人之一,另3名主讲人是律师冯正良(吉隆坡律师委员会资讯科技委员会联合主席)、宪法及人权律师K山姆卡及律师费沙慕丁。主持人马哈乐朱米。

条文一“网”打尽

114A条文的重点在于“假设出版内容是事实”(presumption offact in publication),阐明网络或网站的主人、管理人、主机、编辑订户,或者电脑或流动设备的主人,假设出版或再出版其内容。

这项广义的条文,几乎“一网打尽”个人及商业电脑用户。

除了费沙姆丁持不同看法外,赛夫丁、冯正良和K山姆卡,都认为114A条文对互联网用户造成巨大的冲击。

赛夫丁说,他支持首相倡导的政府转型计划及政治转型计划,不过却认为114A条文是问题条文。

难向民众交代

他说,政府曾经承诺不会审查互联网,但现在却实施114A文条,因此他在向民众解说时也感到棘手。

他说,在反应民众和本身对此条文的立场时,也必须同时考虑其他替代的法令,以在互联网资讯和个人利益上取得平衡。

针对费沙姆丁指有关条文,将在资讯自由流通于个人利益之间取得平衡点,赛夫丁说:“能够平衡当然是好事,不过我不确定,我们是否做到平衡,还是失衡。”

若出版内容属实 难给答辩人定罪

律师费沙姆丁认为,证据法令114A条文并非创建罪行或施加有罪的假设。

他说,假设出版内容是事实(presumption of fact in publication),是可以被推翻的,这项假定不足于证明答辩人有罪。

“如果控方或起诉人无法证明罪行的其他元素,案件一样是不能够成立的。

从“后门”送人入狱“

我不否认,条文中的一些字眼过于广义,尤其是‘提供出版便利’(开设面子书户口)这点。”

K山姆卡说,根据有关条文,被告者必须证明自己的清白,是一种由“后门”送人入狱的做法。

冯正良视有关条文为攻击互联网使用者的工具。

14日互联网中断日

他说,为了抗议此条文,多个团体将在本月14日展开互联网中断日(InternetBlackout)运动。

国内一些组织认为,114A条文颠覆了“定罪前皆属无辜”的法律原则,这法令也可能被有心人滥用来陷害他人,特别是大选即将来临之际。

净选盟受促国庆 勿在独立广场办活动

赛夫丁在回应有关净选盟计划于国庆日前夕在独立广场静坐的问题时说,当晚民众都准备欢庆国家独立纪念日,所以他请求净选盟的成员不要在当晚在独立广场举行活动。

黄衣庆国庆引混乱

他说,如果当晚恰巧着黄色衣服前来庆祝国庆日,到时将会引起混乱。

“所以,我希望净选盟不要选择在国庆日前夕及同一个地点进行活动。”

律師:被控者需負舉證責任‧114A條文太廣泛存爭議

Following the Stop 114A forum, the Sin Chiew reported the following:-

律師:被控者需負舉證責任‧114A條文太廣泛存爭議
國內 2012-08-12 09:35

(吉隆坡11日訊)多名律師認為,2012年證據法令114A條文存在許多爭議,除了可能箝制互聯網言論自由、被控者需負上舉證責任外,該條文用詞上語義過廣,涵蓋範圍也過大。

在律師公會年輕律師委員會、獨立新聞中心及大馬憲法與人權中心(MCCHR)聯辦的“證據法令114A條文:互聯網自由的終結?"論壇上,邀請了多名律師與高等教育部副部長拿督賽夫丁擔任主講人發表對該條文的看法。

【新潮】你相信超自然力量嗎?她的照片帶有某種黑色力量…

馮正良:轉發留言或會惹禍

吉隆坡律師公會資訊工藝委員會主席馮正良指出,假設任何人利用他人電腦、互聯網戶口、wifi無限寬頻、部落格發佈違法內容,如涉及誹謗等,作為網頁設立與管理人,互聯網戶頭擁有者,就算有關內容未經同意或不知情,都會被視為內容發表者。

“一旦在114A條文下被追究責任,有關人士必須舉證證明自己清白,甚至如果你是轉發推特、面子書留言內容都可能惹禍。"他說,在此條文下,該條文範圍過廣,無論是民事或刑事案件,舉證的責任不再歸於原告與檢控官,而是必須由被告舉證本身沒在互聯網上發表任何涉及誹謗、中傷等內容。

他呼吁反對114A條文者,參與獨立新聞中心8月14日(下週二)舉辦“網絡黑屏日"(Internet blackout day)運動,表達不滿之聲。

山慕根:法令忽視匿名者駭客

律師、部落客及著名網站LoyarBurok創辦人K.山慕根作為論壇主講人之一就指出,114A條文的語句用詞不當,語義過廣,忽視了互聯網上存在許多匿名者,利用假戶口在留言、評論,以及存在互聯網騙案、駭客等問題。

“尤其是駭客,一旦駭入其他網民電腦或網絡戶口,利用他人的戶口進行違法事項,無辜者可能會成為代罪羔羊。"他認為,該條文可能會被有心人士尤其是匿名者利用來進行惡意攻擊,或成為過濾互聯網內容的“工具",因為有關人士可針對誹謗內容對特定單位提告,而被告本身證明本身沒發佈違法內容。

法依沙:推定事實非假定有罪

另一名主講者Moideen &Max律師樓合夥人法依沙律師認為,114A條文並不全然滿佈問題,該條文確實在字面上過於廣義,但該條文只是建立一個事實推定(presumption offact),並非假定有罪。

他指出,114A條文假定這個電腦與互聯網戶口既然在某人名下,那麼利用這些通訊器材發表的內容也是由該人發表。

(星洲日報)

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