II 

112TH CONGRESS 

1ST SESSION S. 1212 

To amend title 18, United States Code, to specify the circumstances in 

which a person may acquire geolocation information and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 15, 2011 

Mr. WYDEN introduced the following bill; which was read twice and referred 

to the Committee on the Judiciary 

A BILL 

To amend title 18, United States Code, to specify the circumstances in which a person may acquire geolocation 

information and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLES. 

4 This Act may be cited as the ‘‘Geolocational Privacy 

5 and Surveillance Act’’ or the ‘‘GPS Act’’. 

6 SEC. 2. PROTECTION OF GEOLOCATION INFORMATION. 

7 (a) IN GENERAL.—Part 1 of title 18, United States 

8 Code, is amended by inserting after chapter 119 the fol9 lowing: 


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1 ‘‘CHAPTER 120—GEOLOCATION 

2 INFORMATION 

‘‘Sec. 

‘‘2601. Definitions. 

‘‘2602. Interception and disclosure of geolocation information. 

‘‘2603. Prohibition of use as evidence of acquired geolocation information. 

‘‘2604. Emergency situation exception. 

‘‘2605. Recovery of civil damages authorized. 

3 ‘‘§ 2601. Definitions 

4 ‘‘In this chapter: 

5 ‘‘(1) COVERED SERVICE.—The term ‘covered 

6 service’ means an electronic communication service, 

7 a geolocation information service, or a remote com8 puting service. 

9 ‘‘(2) ELECTRONIC COMMUNICATION SERVICE.— 

10 The term ‘electronic communication service’ has the 

11 meaning given that term in section 2510. 

12 ‘‘(3) ELECTRONIC SURVEILLANCE.—The term 

13 ‘electronic surveillance’ has the meaning given that 

14 term in section 101 of the Foreign Intelligence Sur15 veillance Act of 1978 (50 U.S.C. 1801). 

16 ‘‘(4) GEOLOCATION INFORMATION.—The term 

17 ‘geolocation information’ means, with respect to a 

18 person, any information, that is not the content of 

19 a communication, concerning the location of a wire20 less communication device or tracking device (as 

21 that term is defined section 3117) that, in whole or 

22 in part, is generated by or derived from the operVerDate Mar 15 2010 19:22 Jun 16, 2011 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1212.IS S1212

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1 ation of that device and that could be used to deter2 mine or infer information regarding the location of 

3 the person. 

4 ‘‘(5) GEOLOCATION INFORMATION SERVICE.— 

5 The term ‘geolocation information service’ means the 

6 provision of a global positioning service or other 

7 mapping, locational, or directional information serv8 ice to the public, or to such class of users as to be 

9 effectively available to the public, by or through the 

10 operation of any wireless communication device, in11 cluding any mobile telephone, global positioning sys12 tem receiving device, mobile computer, or other simi13 lar or successor device. 

14 ‘‘(6) INTERCEPT.—The term ‘intercept’ means 

15 the acquisition of geolocation information through 

16 the use of any electronic, mechanical, or other de17 vice. 

18 ‘‘(7) INVESTIGATIVE OR LAW ENFORCEMENT

19 OFFICER.—The term ‘investigative or law enforce20 ment officer’ means any officer of the United States 

21 or of a State or political subdivision thereof, who is 

22 empowered by law to conduct investigations of, or to 

23 make arrests for, offenses enumerated in this chap24 ter, and any attorney authorized by law to prosecute 

25 or participate in the prosecution of such offenses. 


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1 ‘‘(8) PERSON.—The term ‘person’ means any 

2 employee or agent of the United States, or any State 

3 or political subdivision thereof, and any individual, 

4 partnership, association, joint stock company, trust, 

5 or corporation. 

6 ‘‘(9) REMOTE COMPUTING SERVICE.—The term 

7 ‘remote computing service’ has the meaning given 

8 that term in section 2711. 

9 ‘‘(10) STATE.—The term ‘State’ means any 

10 State of the United States, the District of Columbia, 

11 the Commonwealth of Puerto Rico, and any territory 

12 or possession of the United States. 

13 ‘‘(11) WIRELESS COMMUNICATION DEVICE.— 

14 The term ‘wireless communication device’ means any 

15 device that enables access to, or use of, an electronic 

16 communication system or service or a covered serv17 ice, if that device utilizes a radio or other wireless 

18 connection to access such system or service. 

19 ‘‘§ 2602. Interception and disclosure of geolocation in20 formation 

21 ‘‘(a) IN GENERAL.— 

22 ‘‘(1) PROHIBITION ON DISCLOSURE OR USE.— 

23 Except as otherwise specifically provided in this 

24 chapter, it shall be unlawful for any person to— 


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1 ‘‘(A) intentionally intercept, endeavor to 

2 intercept, or procure any other person to inter3 cept or endeavor to intercept, geolocation infor4 mation pertaining to another person; 

5 ‘‘(B) intentionally disclose, or endeavor to 

6 disclose, to any other person geolocation infor7 mation pertaining to another person, knowing 

8 or having reason to know that the information 

9 was obtained through the interception of such 

10 information in violation of this paragraph; 

11 ‘‘(C) intentionally use, or endeavor to use, 

12 any geolocation information, knowing or having 

13 reason to know that the information was ob14 tained through the interception of such infor15 mation in violation of this paragraph; or 

16 ‘‘(D)(i) intentionally disclose, or endeavor 

17 to disclose, to any other person the geolocation 

18 information pertaining to another person inter19 cepted by means authorized by subsections (b) 

20 through (h), except as provided in such sub21 sections; 

22 ‘‘(ii) knowing or having reason to know 

23 that the information was obtained through the 

24 interception of such information in connection 

25 with a criminal investigation; 


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1 ‘‘(iii) having obtained or received the infor2 mation in connection with a criminal investiga3 tion; and 

4 ‘‘(iv) with intent to improperly obstruct, 

5 impede, or interfere with a duly authorized 

6 criminal investigation. 

7 ‘‘(2) PENALTY.—Any person who violates para8 graph (1) shall be fined under this title, imprisoned 

9 not more than five years, or both. 

10 ‘‘(b) EXCEPTION FOR INFORMATION ACQUIRED IN

11 THE NORMAL COURSE OF BUSINESS.—It shall not be un12 lawful under this chapter for an officer, employee, or agent 

13 of a provider of a covered service, whose facilities are used 

14 in the transmission of geolocation information, to inter15 cept, disclose, or use that information in the normal course 

16 of the officer, employee, or agent’s employment while en17 gaged in any activity which is a necessary incident to the 

18 rendition of service or to the protection of the rights or 

19 property of the provider of that service, except that a pro20 vider of a geolocation information service to the public 

21 shall not utilize service observing or random monitoring 

22 except for mechanical or service quality control checks. 

23 ‘‘(c) EXCEPTION FOR CONDUCTING FOREIGN INTEL24 LIGENCE SURVEILLANCE.—Notwithstanding any other 

25 provision of this chapter, it shall not be unlawful for an 


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1 officer, employee, or agent of the United States in the nor2 mal course of the official duty of the officer, employee, 

3 or agent to conduct electronic surveillance, as authorized 

4 by the Foreign Intelligence Surveillance Act of 1978 (50 

5 U.S.C. 1801 et seq.). 

6 ‘‘(d) EXCEPTION FOR CONSENT.— 

7 ‘‘(1) IN GENERAL.—It shall not be unlawful 

8 under this chapter for a person to intercept 

9 geolocation information pertaining to another person 

10 if such other person has given prior consent to such 

11 interception unless such information is intercepted 

12 for the purpose of committing any criminal or 

13 tortious act in violation of the Constitution or laws 

14 of the United States or of any State. 

15 ‘‘(2) CHILDREN.—The exception in paragraph 

16 (1) permits a parent or legal guardian of a child to 

17 intercept geolocation information pertaining to that 

18 child or to give consent for another person to inter19 cept such information. 

20 ‘‘(e) EXCEPTION FOR PUBLIC INFORMATION.—It 

21 shall not be unlawful under this chapter for any person 

22 to intercept or access geolocation information relating to 

23 another person through any system that is configured so 

24 that such information is readily accessible to the general 

25 public. 


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1 ‘‘(f) EXCEPTION FOR EMERGENCY INFORMATION.— 

2 It shall not be unlawful under this chapter for any inves3 tigative or law enforcement officer or other emergency re4 sponder to intercept or access geolocation information re5 lating to a person if such information is used— 

6 ‘‘(1) to respond to a request made by such per7 son for assistance; or 

8 ‘‘(2) in circumstances in which it is reasonable 

9 to believe that the life or safety of the person is 

10 threatened, to assist the person. 

11 ‘‘(g) EXCEPTION FOR THEFT OR FRAUD.—It shall 

12 not be unlawful under this chapter for a person acting 

13 under color of law to intercept geolocation information 

14 pertaining to the location of another person who has un15 lawfully taken the device sending the geolocation informa16 tion if— 

17 ‘‘(1) the owner or operator of such device au18 thorizes the interception of the person’s geolocation 

19 information; 

20 ‘‘(2) the person acting under color of law is 

21 lawfully engaged in an investigation; and 

22 ‘‘(3) the person acting under color of law has 

23 reasonable grounds to believe that the geolocation 

24 information of the other person will be relevant to 

25 the investigation. 


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1 ‘‘(h) EXCEPTION FOR WARRANT.— 

2 ‘‘(1) DEFINITIONS.—In this subsection: 

3 ‘‘(A) COURT OF COMPETENT JURISDIC4 TION.—The term ‘court of competent jurisdic5 tion’ includes— 

6 ‘‘(i) any district court of the United 

7 States (including a magistrate judge of 

8 such a court) or any United States court 

9 of appeals that— 

10 ‘‘(I) has jurisdiction over the of11 fense being investigated; 

12 ‘‘(II) is in or for a district in 

13 which the provider of a geolocation in14 formation service is located or in 

15 which the geolocation information is 

16 stored; or 

17 ‘‘(III) is acting on a request for 

18 foreign assistance pursuant to section 

19 3512; or 

20 ‘‘(ii) a court of general criminal juris21 diction of a State authorized by the law of 

22 that State to issue search warrants. 

23 ‘‘(B) GOVERNMENTAL ENTITY.—The term 

24 ‘governmental entity’ means a department or 


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1 agency of the United States or any State or po2 litical subdivision thereof. 

3 ‘‘(2) WARRANT.—A governmental entity may 

4 intercept geolocation information or require the dis5 closure by a provider of a covered service of 

6 geolocation information only pursuant to a warrant 

7 issued using the procedures described in the Federal 

8 Rules of Criminal Procedure (or, in the case of a 

9 State court, issued using State warrant procedures) 

10 by a court of competent jurisdiction, or as otherwise 

11 provided in this chapter or the Foreign Intelligence 

12 Surveillance Act of 1978 (50 U.S.C. 1801 et seq.). 

13 ‘‘(i) PROHIBITION ON DIVULGING GEOLOCATION IN14 FORMATION.— 

15 ‘‘(1) IN GENERAL.—Except as provided in para16 graph (2), a person providing a covered service shall 

17 not intentionally divulge geolocation information per18 taining to another person. 

19 ‘‘(2) EXCEPTIONS.—A person providing a cov20 ered service may divulge geolocation information— 

21 ‘‘(A) as otherwise authorized in subsections 

22 (b) through (h); 

23 ‘‘(B) with the lawful consent of such other 

24 person; 


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1 ‘‘(C) to another person employed or au2 thorized, or whose facilities are used, to forward 

3 such geolocation information to its destination; 

4 or 

5 ‘‘(D) which was inadvertently obtained by 

6 the provider of the covered service and which 

7 appears to pertain to the commission of a 

8 crime, if such divulgence is made to a law en9 forcement agency. 

10 ‘‘§ 2603. Prohibition of use as evidence of acquired 

11 geolocation information 

12 ‘‘Whenever any geolocation information has been ac13 quired, no part of such information and no evidence de14 rived therefrom may be received in evidence in any trial, 

15 hearing, or other proceeding in or before any court, grand 

16 jury, department, officer, agency, regulatory body, legisla17 tive committee, or other authority of the United States, 

18 a State, or a political subdivision thereof if the disclosure 

19 of that information would be in violation of this chapter. 

20 ‘‘§ 2604. Emergency situation exception 

21 ‘‘(a) EMERGENCY SITUATION EXCEPTION.—Not22 withstanding any other provision of this chapter, any in23 vestigative or law enforcement officer, specially designated 

24 by the Attorney General, the Deputy Attorney General, 

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1 ecuting attorney of any State or subdivision thereof acting 

2 pursuant to a statute of that State, may intercept 

3 geolocation information if— 

4 ‘‘(1) such officer reasonably determines that an 

5 emergency situation exists that— 

6 ‘‘(A) involves— 

7 ‘‘(i) immediate danger of death or se8 rious physical injury to any person; 

9 ‘‘(ii) conspiratorial activities threat10 ening the national security interest; or 

11 ‘‘(iii) conspiratorial activities char12 acteristic of organized crime; and 

13 ‘‘(B) requires geolocation information be 

14 intercepted before an order authorizing such 

15 interception can, with due diligence, be ob16 tained; 

17 ‘‘(2) there are grounds upon which an order 

18 could be entered to authorize such interception; and 

19 ‘‘(3) an application for an order approving such 

20 interception is made within 48 hours after the inter21 ception has occurred or begins to occur. 

22 ‘‘(b) FAILURE TO OBTAIN COURT ORDER.— 

23 ‘‘(1) TERMINATION OF ACQUISITION.—In the 

24 absence of an order, an interception of geolocation 

25 information carried out under subsection (a) shall 


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1 immediately terminate when the information sought 

2 is obtained or when the application for the order is 

3 denied, whichever is earlier. 

4 ‘‘(2) PROHIBITION ON USE AS EVIDENCE.—In 

5 the event such application for approval is denied, the 

6 geolocation information shall be treated as having 

7 been obtained in violation of this chapter and an in8 ventory shall be served on the person named in the 

9 application. 

10 ‘‘§ 2605. Recovery of civil damages authorized 

11 ‘‘(a) IN GENERAL.—Any person whose geolocation 

12 information is intercepted, disclosed, or intentionally used 

13 in violation of this chapter may in a civil action recover 

14 from the person, other than the United States, which en15 gaged in that violation such relief as may be appropriate. 

16 ‘‘(b) RELIEF.—In an action under this section, ap17 propriate relief includes— 

18 ‘‘(1) such preliminary and other equitable or 

19 declaratory relief as may be appropriate; 

20 ‘‘(2) damages under subsection (c) and punitive 

21 damages in appropriate cases; and 

22 ‘‘(3) a reasonable attorney’s fee and other liti23 gation costs reasonably incurred. 


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1 ‘‘(c) COMPUTATION OF DAMAGES.—The court may 

2 assess as damages under this section whichever is the 

3 greater of— 

4 ‘‘(1) the sum of the actual damages suffered by 

5 the plaintiff and any profits made by the violator as 

6 a result of the violation; or 

7 ‘‘(2) statutory damages of whichever is the 

8 greater of $100 a day for each day of violation or 

9 $10,000. 

10 ‘‘(d) DEFENSE.—It is a complete defense against any 

11 civil or criminal action brought against an individual for 

12 conduct in violation of this chapter if such individual acted 

13 in a good faith reliance on— 

14 ‘‘(1) a court warrant or order, a grand jury 

15 subpoena, a legislative authorization, or a statutory 

16 authorization; 

17 ‘‘(2) a request of an investigative or law en18 forcement officer under section 2604; or 

19 ‘‘(3) a good-faith determination that an excep20 tion under section 2602 permitted the conduct com21 plained of. 

22 ‘‘(e) LIMITATION.—A civil action under this section 

23 may not be commenced later than two years after the date 

24 upon which the claimant first has a reasonable oppor25 tunity to discover the violation. 


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1 ‘‘(f) ADMINISTRATIVE DISCIPLINE.—If a court or ap2 propriate department or agency determines that the 

3 United States or any of its departments or agencies has 

4 violated any provision of this chapter, and the court or 

5 appropriate department or agency finds that the cir6 cumstances surrounding the violation raise serious ques7 tions about whether or not an officer or employee of the 

8 United States acted willfully or intentionally with respect 

9 to the violation, the department or agency shall, upon re10 ceipt of a true and correct copy of the decision and find11 ings of the court or appropriate department or agency 

12 promptly initiate a proceeding to determine whether dis13 ciplinary action against the officer or employee is war14 ranted. If the head of the department or agency involved 

15 determines that disciplinary action is not warranted, such 

16 head shall notify the Inspector General with jurisdiction 

17 over the department or agency concerned and shall provide 

18 the Inspector General with the reasons for such deter19 mination. 

20 ‘‘(g) IMPROPER DISCLOSURE IS VIOLATION.—Any 

21 willful disclosure or use by an investigative or law enforce22 ment officer or governmental entity of information beyond 

23 the extent permitted by this chapter is a violation of this 

24 chapter for purposes of this section.’’. 


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1 (b) CLERICAL AMENDMENT.—The table of chapters 

2 for part 1 of title 18, United States Code, is amended by 

3 inserting after the item relating to chapter 119 the fol4 lowing: 

‘‘120. Geolocation information .................................................................. 2601’’. 

5 (c) CONFORMING AMENDMENTS.—Section 3512(a) of 

6 title 18, United States Code, is amended— 

7 (1) in paragraph (2)— 

8 (A) by redesignating subparagraphs (B), 

9 (C), and (D) as subparagraphs (C), (D), and 

10 (E), respectively; and 

11 (B) by inserting after subparagraph (A) 

12 the following: 

13 ‘‘(B) a warrant or order for geolocation in14 formation or records related thereto, as pro15 vided under section 2602 of this title;’’. 

16 SEC. 3. REQUIREMENT FOR SEARCH WARRANTS TO AC17 QUIRE GEOLOCATION INFORMATION. 

18 Rule 41(a) of the Federal Rules of Criminal Proce19 dure is amended— 

20 (1) in paragraph (2)(A), by striking the period 

21 at the end and inserting a comma and ‘‘including 

22 geolocation information.’’; and 

23 (2) by adding at the end the following: 


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1 ‘‘(F) ‘Geolocation information’ has the 

2 meaning given that term in section 2601 of title 

3 18, United States Code.’’. 

4 SEC. 4. FRAUD AND RELATED ACTIVITY IN CONNECTION 

5 WITH OBTAINING GEOLOCATION INFORMA6 TION. 

7 (a) CRIMINAL VIOLATION.—Section 1039(h) of title 

8 18, United States Code, is amended— 

9 (1) in paragraph (2)— 

10 (A) in subparagraph (A), by striking 

11 ‘‘and’’ at the end; 

12 (B) in subparagraph (B), by striking the 

13 period at the end and inserting a semicolon and 

14 ‘‘and’’; and 

15 (C) by adding at the end the following new 

16 subparagraph: 

17 ‘‘(C) includes any geolocation information 

18 service.’’; 

19 (2) by redesignating paragraph (4) as para20 graph (5); and 

21 (3) by inserting after paragraph (3) the fol22 lowing: 

23 ‘‘(4) GEOLOCATION INFORMATION SERVICE.— 

24 The term ‘geolocation information service’ has the 

25 meaning given that term in section 2601.’’. 


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1 (b) CONFORMING AMENDMENTS.— 

2 (1) DEFINITION AMENDMENTS.—Section 

3 1039(h)(1) of title 18, United States Code, is 

4 amended— 

5 (A) in the paragraph heading, by inserting 

6 ‘‘OR GPS’’ after ‘‘PHONE’’; and 

7 (B) in the matter preceding subparagraph 

8 (A), by inserting ‘‘or GPS’’ after ‘‘phone’’. 

9 (2) CONFORMING AMENDMENTS.—Section 1039 

10 of title 18, United States Code, is amended— 

11 (A) in the section heading by inserting ‘‘or 

12 GPS’’ after ‘‘phone’’; 

13 (B) in subsection (a)— 

14 (i) in the matter preceding paragraph 

15 (1), by inserting ‘‘or GPS’’ after ‘‘phone’’; 

16 and 

17 (ii) in paragraph (4), by inserting ‘‘or 

18 GPS’’ after ‘‘phone’’; 

19 (C) in subsection (b)— 

20 (i) in the subsection heading, by in21 serting ‘‘OR GPS’’ after ‘‘PHONE’’; 

22 (ii) in paragraph (1), by inserting ‘‘or 

23 GPS’’ after ‘‘phone’’ both places that term 

24 appears; and 


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1 (iii) in paragraph (2), by inserting ‘‘or 

2 GPS’’ after ‘‘phone’’; and 

3 (D) in subsection (c)— 

4 (i) in the subsection heading, by in5 serting ‘‘OR GPS’’ after ‘‘PHONE’’; 

6 (ii) in paragraph (1), by inserting ‘‘or 

7 GPS’’ after ‘‘phone’’ both places that term 

8 appears; and 

9 (iii) in paragraph (2), by inserting ‘‘or 

10 GPS’’ after ‘‘phone’’. 

11 (3) CHAPTER ANALYSIS.—The table of sections 

12 for chapter 47 of title 18, United States Code, is 

13 amended by striking the item relating to section 

14 1039 and inserting the following: 

‘‘1039. Fraud and related activity in connection with obtaining confidential 

phone or GPS records information of a covered entity.’’. 

15 (c) SENTENCING GUIDELINES.— 

16 (1) REVIEW AND AMENDMENT.—Not later than 

17 180 days after the date of enactment of this Act, the 

18 United States Sentencing Commission, pursuant to 

19 its authority under section 994 of title 28, United 

20 States Code, and in accordance with this section, 

21 shall review and, if appropriate, amend the Federal 

22 sentencing guidelines and policy statements applica23 ble to persons convicted of any offense under section 


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1 1039 of title 18, United States Code, as amended by 

2 this section. 

3 (2) AUTHORIZATION.—The United States Sen4 tencing Commission may amend the Federal sen5 tencing guidelines in accordance with the procedures 

6 set forth in section 21(a) of the Sentencing Act of 

7 1987 (28 U.S.C. 994 note) as though the authority 

8 under that section had not expired. 

9 SEC. 5. STATEMENT OF EXCLUSIVE MEANS OF ACQUIRING 

10 GEOLOCATION INFORMATION. 

11 (a) IN GENERAL.—No person may acquire the 

12 geolocation information of a person for protective activities 

13 or law enforcement or intelligence purposes except pursu14 ant to a warrant issued pursuant to rule 41 of the Federal 

15 Rules of Criminal Procedure, as amended by section 3, 

16 or the amendments made by this Act, or the Foreign Intel17 ligence Surveillance Act of 1978 (50 U.S.C. 1801). 

18 (b) GEOLOCATION INFORMATION DEFINED.—In this 

19 section, the term ‘‘geolocation information’’ has the mean20 ing given that term in section 2601 of title 18, United 

21 States Code, as amended by section 2. 

Æ 


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