Public Safety Minister Vic Toews - warrantless searches are "very standard practice"
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Public Safety Minister Vic Toews warrantless searches are “very standard practice” Welcome to my weekly news personal, uh, web surfing habits or is doing is adding a protective Bulletin! As always, I will be the emails of ordinary Canadians, framework around the process including links to online resources indeed any Canadian, police are to protect the privacy rights of Text like this means you can click not allowed to access that unless Canadians. on it to view a resource online if they have a judicial warrant. That I guess simply stopping police you want more information about certainly is our intent and that from performing all these the topic that is being discussed. should be the focus of the law.” warrantless searches was too Now for the latest... Ezra Levant made a point of much to ask, so Justice Depart- asking the Minister about the ment bureaucrats wrote legisla- information that police and tion to make it all nice and legal. This statement, made on the bureaucrats would no longer, by “Those are the six identifiers Sun News Network, should shock law, require a search warrant. that are required in order to get a every Canadian out of their civil These “indicators” as Minister warrant, Ezra. It gets into a Catch- rights slumber. Toews calls them, are contained in 22. People say ‘Well you should get Speaking to Ezra Levant on the Section 16(1) of Bill C-30: a warrant to get any information.’ February 16, 2012 edition of his “...every telecommunications You can’t get a warrant without that show “The Source”, (http://ezral- service provider must provide the information.” evant.com/2012/02/addressing- person with identifying information Nice try, Minister Toews, but bill-c30.html) Vic Toews made it in the service provider’s possession that dog just don’t hunt. very clear that bureaucrats from or control respecting the name, If police don’t already know all kinds of government depart- address, telephone number and elec- who you are, where you live and ments, including such things as tronic mail address of any subscriber what crime they believe you have the Competition Bureau, already to any of the service provider’s committed, how do they know perform warrantless searches and telecommunications services and they’re demanding an Internet invade the privacy of Canadians the Internet protocol address and Service Provider to hand over on a regular basis. local service provider identifier that the name, address, telephone “Well, right now regulatory are associated with the subscriber’s number, email address, IP address authorities have the power to do service and equipment. of the right person? warrantless searches. That is very Minister Toews then went on They don’t. standard practice. So, without to say that police routinely ask t e y Ka talking specifically, what I can say for and receive this information is when it that comes to the, uh, the already, and that all the Minister Rights and Freedoms Bulletin (ISSN 1923-998X) is a public service of provided by KateysFirearmsFacts.com and KM Publishing Inc., P.O. Box 21004, Chilliwack, BC V2P 8A9
Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com Privacy Rights its use, the ISP is prohibited from telling him or her unless the police, national security agencies or The hidden gag order in Bill C-30: the “Protecting competition cops give their OK. And they can refuse Children from Internet Predators Act” to give their OK on a number of relatively flexible by the Canadian Privacy Law Blog bases. http://blog.privacylawyer.ca This is the opposite of transparency, and it looks like it was designed this way. While much attention has been focused on the For statute nerds, the particular subsections of general problems with Bill C-30 - Protecting Chil- PIPEDA referred to in Section 23 of C-30 are: dren from Internet Predators Act, we are starting to see some very good commentary on the details. Information related to paragraphs 7(3)(c), (c.1) One detail that hasn’t really seen the light (and it or (d) may not be an accident) is the hidden gag order. 9(2.1) An organization shall comply with Not only will the police, national security folks subsection (2.2) if an individual requests that the and the competition cops be able to get customer organization names, addresses, IP addresses and e-mail addresses (a) inform the individual about without a warrant, there’s a gag order that means (i) any disclosure of information to a you’ll likely never find out you’ve been the subject of government institution or a part of a government such an inquiry even if you ask your ISP. institution under paragraph 7(3)(c), subparagraph 7(3)(c.1)(i) or (ii) or paragraph 7(3)(c.2) or (d), or Section 23 looks like it was designed to be obscure (ii) the existence of any information that and obtuse: the organization has relating to a disclosure referred to in subparagraph (i), to a subpoena, warrant or 23. Personal information, as defined in subsection order referred to in paragraph 7(3)(c) or to a request 2(1) of the Personal Information Protection and Elec- made by a government institution or a part of a tronic Documents Act, that is provided under subsection government institution under subparagraph 7(3) 16(1) or 17(1) is deemed, for the purposes of subsec- (c.1)(i) or (ii); or tions 9(2.1) to (2.4) of that Act, to be disclosed under (b) give the individual access to the informa- subparagraph 7(3)(c.1)(i) or (ii), and not under para- tion referred to in subparagraph (a)(ii). graph 7(3)(i), of that Act. This section operates despite the other provisions of Part 1 of that Act. Notification and response Unless you’re familiar with the Personal Infor- (2.2) An organization to which subsection (2.1) mation Protection and Electronic Documents Act, applies you’ll probably miss what this means. (a) shall, in writing and without delay, notify In short, by default everyone has the right to ask the institution or part concerned of the request any company that is subject to the law what infor- made by the individual; and mation they have about him or her, how they’ve (b) shall not respond to the request before the used it and to whom they’ve disclosed it. That is, earlier of unless that right is overridden by Section 9. (i) the day on which it is notified under Section 23 of C-30 essentially says that any subsection (2.3), and personal information that is handed over without a (ii) thirty days after the day on which the warrant under the lawful access law has to be treat- institution or part was notified. ed in the same way under PIPEDA as information disclosed in response to a law enforcement request. Objection Here’s where the gag order kicks in. If the person exercises his lawful right to seek (2.3) Within thirty days after the day on which his or her personal information and accounting of it is notified under subsection (2.2), the institution or part shall notify the organization whether or 2 Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com
Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com not the institution or part objects to the organiza- Search and Seizure Violations tion complying with the request. The institution or part may object only if the institution or part is of Needed: 12 REAL conservative CPC MPs the opinion that compliance with the request could by Connie Fournier, FreeDominion.com.pa reasonably be expected to be injurious to (a) national security, the defence of Canada or Are there 12 men and women in the CPC Caucus the conduct of international affairs; who have enough principles to stand against the (a.1) the detection, prevention or deterrence tyranny that their government is imposing with of money laundering or the financing of terrorist their lawful access bill? activities; or This bill does not have to pass. The opposition is *(a.1) the detection, prevention or deterrence united against it, so we just need 12 brave Members of money laundering; or of Parliament to vote against it, or 24 to stay home. *[Note: Paragraph 9(2.3)(a.1), as enacted by Dear CPC MPs, paragraph 97(1)(c) of chapter 17 of the Statutes of Canada, 2000, will be repealed at a later date.] Maybe you don’t understand what you are voting for with this bill. Maybe you don’t realize that you (b) the enforcement of any law of Canada, a will be signing away your own privacy, too. province or a foreign jurisdiction, an investigation If you vote for this bill, private companies will relating to the enforcement of any such law or the store on their computers your complete browsing gathering of intelligence for the purpose of enforc- history, emails, text messages... anything you do ing any such law. online. Anyone who works for those companies could gain Prohibition access to that unsecured data, and your private life could wind up on display at wikileaks! (2.4) Despite clause 4.9 of Schedule 1, if an We are not suggesting you have anything to hide, organization is notified under subsection (2.3) that but everyone has personal emails and texts that are the institution or part objects to the organization not meant for public consumption. complying with the request, the organization If yours are to be stored on an unsecured ISP (a) shall refuse the request to the extent that computer, you will have to vet every word you type, it relates to paragraph (2.1)(a) or to information and every site you visit as thoroughly as you would a referred to in subparagraph (2.1)(a)(ii); constituency mail-out. (b) shall notify the Commissioner, in writing If you can’t vote against this terrible bill for the and without delay, of the refusal; and sake of your constituents, PLEASE take a moment (c) shall not disclose to the individual to think about how vulnerable YOU will be with (i) any information that the organization such a system in place. has relating to a disclosure to a government institu- It’s not too late to stop this thing. tion or a part of a government institution under Please vote against it, or just stay home. paragraph 7(3)(c), subparagraph 7(3)(c.1)(i) or (ii) or paragraph 7(3)(c.2) or (d) or to a request made by a government institution under either of those subparagraphs, All the great things are simple, (ii) that the organization notified an insti- tution or part under paragraph (2.2)(a) or the and many can be expressed in Commissioner under paragraph (b), or a single word: freedom; justice; (iii) that the institution or part objects. honor; duty; mercy; hope What ever happened to the conservative part of our so-called Conservative government? ~ Sir Winston Churchill 3 Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com
Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com RR Warrantless: A range of “authorities” will have the ability to access the private information of law-abiding Canadians and our families using wired Internet and mobile devices, without justification. RR Invasive: The laws leave our personal and financial information less secure and more suscepti- The government is about to push through a set ble to cybercrime. of electronic surveillance laws that will invade your RR Costly: Internet services providers may be privacy and cost you money. forced to install millions of dollars worth of spying The plan is to force every phone and Internet technology and the cost will be passed down to YOU. provider to allow “authorities” to collect the private information of any Canadian, at any time, without a If enough of us speak out now the government warrant. will have no choice but to stop this mandatory This bizarre legislation will create Internet surveil- online spying scheme. Sign the petition now, and lance that is: forward it to everyone you know. The BC Civil Liberties Association has written a report about the implications of what the government calls ‘lawful access’ and what it really means for Canadians and their privacy rights. The BCCLA report that analyzes Canada’s domestic spying plan is called “Moving Toward a Surveillance Society: Proposals to Expand “Lawful Access” in Canada” and can be downloaded from the link below: http://www.bccla.org/othercontent/ Moving-toward-a-surveillance-society. pdf 4 Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com
Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com Unlawful Access RR Does the government seem somewhat incon- sistent on its crime and privacy policies? RR Where can I learn more about lawful access Everything You Always Wanted to and what can I do? Know About Lawful Access, But Were (Understandably) Afraid To Ask Update: Bill C-30 was introduced on February 14, by Michael Geist 2012. One important change from the last bill to the current bill is that the list of data points subject to Public Safety Minister Vic Toews is expected to mandatory disclosure without court oversight has introduce lawful access legislation tomorrow in the shrunk from 11 to six. The IMEI numbers, discussed House of Commons. An Act to enact the Investigat- further below, are no longer on the list. ing and Preventing Criminal Electronic Communi- cations Act and to amend the Criminal Code and What is lawful access? others Acts, likely to be Bill C-30, will mark the The push for new Internet surveillance capabili- return of lawful access in a single legislative pack- ties goes back to 1999, when government officials age. While it is certainly possible for a surprise, began crafting proposals to institute new surveil- the bill is expected to largely mirror the last lawful lance technologies within Canadian networks along access bills (C-50, 51, and 52) that died on the order with additional legal powers to access surveillance paper with the election last spring. and subscriber information. There have been several This long post tries to address many of the most attempts at passing lawful access legislation, but common questions and misconceptions about lawful each has died on the order paper without progress- access in Canada. The questions and answers are: ing through the legislative process. In fact, no RR What is lawful access? lawful access bill has even made it to the committee RR What is Bill C-30 likely to contain? stage for hearings and detailed examination. RR Isn’t ISP customer name and address infor- mation similar to phone book data that is readily What is Bill C-30 likely to contain? available to the public without privacy concerns? Assuming the bill mirrors the previous Conserva- (first prong) tive government approach, the bill will likely feature RR Isn’t the mandatory disclosure of ISP a three-pronged approach focused on information customer information necessary for police investiga- disclosure, mandated surveillance technologies, and tions? (first prong) new police powers. RR Didn’t former Public Safety Minister Stock- The first prong mandates the disclosure of Inter- well Day pledge not to introduce mandatory disclo- net provider customer information without court sure of ISP customer information without court oversight. Under current privacy laws, providers oversight? (first prong) may voluntarily disclose customer information but RR Who pays for the surveillance infrastructure are not required to do so. The new system would required by lawful access? (second prong) require the disclosure of customer name, address, RR Does lawful access create a new regulatory phone number, email address, Internet proto- framework for the Internet? (second prong) col address, and a series of device identification RR Does lawful access create new police powers? numbers. (third prong) While some of that information may seem rela- RR Does opposing lawful access mean question- tively harmless, the ability to link it with other data ing the integrity of law enforcement? will often open the door to a detailed profile about RR Don’t other countries have the same lawful an identifiable person. Given its potential sensitiv- access rules as those found in Canada? ity, the decision to require disclosure without any RR What do Canada’s privacy commissioners oversight should raise concerns within the Canadian think about lawful access? privacy community. RR Are these lawful access proposal constitu- The second prong requires Internet providers to tional? dramatically re-work their networks to allow for 5 Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com
Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com real-time surveillance. The bill sets out detailed points: capability requirements that will eventually apply to all Canadian Internet providers. These include the »» name and address power to intercept communications, to isolate the »» telephone number communications to a particular individual, and to »» electronic mail address engage in multiple simultaneous interceptions. »» Internet protocol address Moreover, the bill establishes a comprehensive »» mobile identification number regulatory structure for Internet providers that »» electronic serial number (ESN) would mandate their assistance with testing their »» local service provider identifier surveillance capabilities and disclosing the names of »» international mobile equipment identity all employees who may be involved in interceptions (IMEI) number (and who may then be subject to RCMP background »» international mobile subscriber identity checks). (IMSI) number The bill also establishes numerous reporting »» subscriber identity module (SIM) card requirements including mandating that all Internet number that are associated with the subscriber’s providers disclose their technical surveillance capa- service and equipment. bilities within six months of the law taking effect. Follow-up reports are also required when providers This data goes well beyond phone book data and acquire new technical capabilities. can be used for invasive investigations without Having obtained customer information without court oversight. For example, IMSI catchers can be court oversight and mandated Internet surveil- used to capture all IMEI numbers in a geographic lance capabilities, the third prong creates a several location so that anyone with mobile device would new police powers designed to obtain access to the have this information captured. Law enforcement surveillance data. These include new transmission could use this tool to capture information all cell- data warrants that would grant real-time access phones in a given area - say at a G20 protest, visit- to all the information generated during the crea- ing Parliament Hill, or at a community event - and tion, transmission or reception of a communication then require Canada’s telecom companies to disclose including the type, direction, time, duration, origin, the corresponding names and addresses. All without destination or termination of the communication. court oversight. Christopher Parsons provides a Law enforcement could then obtain a preservation detailed look at this issue. order to require providers to preserve subscriber information, including specific communication Isn’t the mandatory disclosure of ISP information, for 90 days. Finally, having obtained customer information necessary for police and preserved the data, production orders can be investigations? (first prong) used to require the disclosure of specified communi- No. To date neither the government nor law cations or transmission data. enforcement agencies have provided evidence that While Internet providers would actively work with the current law - which permits disclosure without law enforcement in collecting and disclosing the a warrant but does not mandate it - has created an subscriber information, they could also be prohib- investigatory barrier. Indeed, earlier this month, ited from disclosing the disclosures as court may police in Ontario arrested 60 men on child pornog- bar them from informing subscribers that they have raphy charges after obtaining information on been subject to surveillance or information disclo- hundreds of IP addresses using the current law. sures. This is but one example of numerous success- ful child pornography investigations in Canada in Isn’t ISP customer name and address infor- recent years (here, here, here, and here). These mation similar to phone book data that is successes have not stopped Toews from arguing readily available to the public without privacy opponents of lawful access will make things easier concerns? (first prong) for child predators Similarly, the succesful anti- No. The last bill included the following data terror investigations involving the Toronto 18 6 Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com
Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com involved computer and Internet-based investiga- I have filed Access to Information requests with tions using current law. Public Safety, Justice, the RCMP, and CSIS on these Given the lack of evidence on the need for these consultation. Thus far no one has provided any changes, politicians and police have been scrambling documentation or evidence. to find justifications for the change. In 2009, then- Public Safety Minister Peter Van Loan pointed to a Who pays for the surveillance infrastructure 2009 kidnapping case in Vancouver as evidence of required by lawful access? (second prong) the need for legislative change, describing witness- Cost is a big question mark on lawful access, ing an emergency situation in which Vancouver though costs will ultimately borne by the public. police waited 36 hours to get the information they According to documents obtained under the Access needed in order to obtain a warrant for customer to Information Act, many telecom and Internet name and address information. That sounds like a providers have been primarily focused on the costs credible case, but according to documents obtained associated with installing surveillance equipment under access to information, no Internet provider and with processing law enforcement requests. records were actually sought during the investiga- The government may provide financial assistance tion. More recently, Open Media obtained internal to smaller Internet providers to help address their police documents seeking examples of why legisla- costs or provide an implementation delay. Some tive change is needed. The document acknowledged smaller providers have indicated they may be forced that previous efforts “lacked a sufficient quantity of to close if they bear the costs alone. Providers will good examples.” likely also be able to charge fees for complying with David Fraser has also looked at this issue here. law enforcement requests. Didn’t former Public Safety Minister Stock- Does lawful access create a new regulatory well Day pledge not to introduce mandatory framework for the Internet? (second prong) disclosure of ISP customer information with- The lawful access proposals create what can only out court oversight? (first prong) be described a new regulatory environment for Yes. Former Conservative Public Safety Minister Internet providers. Every provider must: Stockwell Day stated in 2007: “we have not and we will not be proposing legisla- »» submit a report within six months on their tion to grant police the power to get information from equipment and surveillance capabilities Internet companies without a warrant. That’s never »» submit a report on new equipment if acquire been a proposal. It may make some investigations more another provider difficult, but our expectation is rights to our privacy »» face possibilities of audits from the RCMP are such that we do not plan, nor will we have in place, and others something that would allow the police to get that infor- »» assist law enforcement with testing facilities mation.” for interception purposes Toews has now backed away from that pledge. »» provide the names of all employees involved According to a letter sent to NDP MP Charlie Angus in interceptions. The RCMP may conduct back- in November 2011, Toews wrote: ground checks with consent It is correct that former Public Safety Minister »» meet operational requirements to enable Stockwell Day did, at one time, endorse a subscriber interception, isolate communications, provide information regime that would have required a warrant proscribed information, and conduct multiple inter- in order to access the information. However, since that ceptions time, the Government has consulted further with law enforcement and justice officials and determined that a Does lawful access create new police powers? warrant requirement for basic subscriber information (third prong) would negatively impact the ability to carry out inves- Yes. As noted above, it envisions at least three tigations and would introduce an additional burden on new warrants. By definition, these involve court the criminal justice system. oversight. The warrants are: 7 Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com
Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com »» Transmission warrants, which cover infor- conducting investigations. mation related to the transmission of informa- tion such as routing or addressing, along with all What do Canada’s privacy commissioners the additional header-type information created by think about lawful access? messages. Canada’s privacy commissioners have been unani- »» Preservation orders, which require the mous in their criticism of the government’s lawful temporary retention of data on particular subscrib- access proposals. A letter signed by all Canadian ers or communications commissioners can be found here. »» Production orders, which can require disclo- Privacy Commissioner of Canada Jennifer Stod- sure of transmission data, tracking data, financial dart posted a follow-up open letter in late October data or information on specified communications 2011 (an As It Happens interview here). Ontario Privacy Commissioner Ann Cavoukian has also Does opposing lawful access mean question- been very active on the lawful access issue with a ing the integrity of law enforcement? full website that includes video from a symposium, a In Toews’ November 2011 letter to Angus, he public letter to Toews with detailed legal analysis, an states: op-ed, and a Search Engine podcast. For you to suggest that authorities would use these identifiers to track individuals without first obtaining Are these lawful access proposal constitu- tional? the necessary judicial authority is to question the integ- rity of those entrusted to keep our communities safe. The Supreme Court of Canada may ultimately be asked to answer that question. One of the most We can expect more of this line of argument in the comprehensive legal and constitutional analyses months ahead. All Canadians recognize the need for of the lawful access proposals comes from Pippa security and to ensure that law enforcement has the Lawson in a recent paper titled Moving Toward a tools they need. Yet the experience in other jurisdic- Surveillance Society: Proposals to Expand “Lawful tions points to the dangers of blanket powers with Access” in Canada (PDF), commissioned by the BC no oversight. For example, in the United States, the Civil Liberties Association. National Security Administration has admitted in “over-collection” of domestic email messages and Does the government seem somewhat incon- phone calls. In Greece, more than 100 cell phones sistent on its crime and privacy policies? owned by the Prime Minister and senior govern- If by inconsistent you mean supporting the crea- ment officials were surreptitiously wiretapped. tion of widespread surveillance capabilities, remov- Despite the best of intentions, mistakes happen ing foundational privacy principles requiring court which is why oversight and reporting is crucial. oversight, and claiming the need to support police investigations, while: Don’t other countries have the same lawful access rules as those found in Canada? »» killing the long gun registry over the objec- Some do, but the experience in other countries tions of the Canadian Association of Chiefs of Police is illustrative of why the Canadian approach is so »» planning to delete the data from the long dangerous. Christopher Parsons recently released a gun registry on privacy grounds (Toews: “to main- detailed paper (PDF) that examines the experiences tain the registry and the information is a complete in countries such as the UK and the U.S. In the U.K., violation of law and the principles of privacy that all there are dozens of examples of errors over the last of us in the House respect”) few years. Moreover, the rules have been used for »» scrapping the mandatory long-form census things such as ascertaining “a family’s eligibility to on privacy grounds send their children to a local school.” In the U.S., similar surveillance powers have then, yes, they seem somewhat inconsistent. been used thousands of times with ISPs and Inter- net companies. Targets have included journalists 8 Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com
Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com Where can I learn more about lawful access Bill C-30 is un-Canadian and what can I do? By Dale Jackaman, Richmond News Feb 17, 2012 Given the widespread concern, there are many excellent resources on lawful access. These include: »» Unlawful Access, a 15 minute video that An open letter to Minister Vic Toews, includes interviews with many Canadian experts including Andrew Clement, David Fewer, David Re: Bill C-30 Lyon, David Murakami Wood, Dwayne Winseck, Ian Kerr, Natalie Des Rosiers, and Ron Deibert (I’m in I’m the president of a licensed private inves- the film as well). tigative firm that works in the area of cyber- »» CIPPIC FAQ on lawful access crime primarily in the counter industrial »» Christopher Parsons posts on lawful access espionage field. »» David Fraser’s posts on lawful access As a law enforcement professional myself If you are concerned with lawful access, (and a veteran) I most assuredly do not speak out: support Bill C-30, if for no other reason than that it is un-Canadian. »» Ontario Privacy Commissioner Ann Cavou- kian has a form to send a message to your MP I was not impressed with your characteri- »» Open Media is running a petition zation of those of us who oppose this kind of »» Make your voice known to your elected legislation. I have voiced my opposition quite representatives, to the Minister of Public Safety, Vic publicly. Toews and to Prime Minister Stephen Harper. Your statements were not the best way to While the Harper government seems intent on engender support for this or any other kind of ignoring the concerns raised by Privacy Commis- legislation, Mr. Toews. sioners across Canada, perhaps those of us who send these folks to Ottawa can make them listen. As is typical of your government in many areas, you are long on ideology, short on evidentiary decision-making and profoundly disturbing in your penchant for being an ultra controlling secretive government with decid- edly un-Canadian neo/theo-conservative values. Your Canada is not the Canada for which I became a veteran. Dale Jackaman Richmond 9 Rights and Freedom Bulletin Issue No. 76 -- Feb 18, 2012 http://KateysFirearmsFacts.com
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