Heath Bunting: Natural and Artificial Identities, or The Ease of Interaction
Published on February 11th, 2011
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UK barrister Bob Colover and Heath Bunting discuss the legal issues around identities. What constitutes a person? What is the difference between an artificial and a natural person? And what are the legal aspects of buying an identity?
part of NetArtWorks: Identity Works
IDENTITY FOR SALE
B: You said you sold the project, you mean you sold an identity?
H: Yes that was a couple of years ago. I have two new ones now, and they’re up for sale. I’m still looking for the price, basically in order to price them correctly.
B: What would they entitle the owner of that identity to do?
H: They become residents in the UK. They would be entitled to free health care, probably entitled to work, and liable for tax. They would have a local bank account, a union account probably.[i] And basically, if you have a local bank account you can have a national one too.
B: What about national insurance?
H: At the moment national insurance is a grey area for me, because you can self-issue a national insurance number, or rather, a temporary national insurance number. For instance, a self-issued number would be: TM for temporary number, followed by your date of birth, six digits, and then M or F for male or female. You can use that officially. If you want to have a permanent national insurance number you have to submit yourself to an interview. So you definitely can use health care and financial services. I didn’t include a credit card, because credit cards generally come with 3000 pounds of credit. So I would have to charge over 3000 pounds for the identity. For the same reason I did not include a passport, because the procedure involved in acquiring a legitimate passport costs anything upwards of 10,000 pounds. This would make the project too expensive. I want to keep it more affordable.
A: Can you buy a passport in the UK?
H: Yes you can. I haven’t looked in depth at a UK passport yet. A lot of these areas are hidden from normal people. As far as I know you can become a British national by buying one for 10,000 dollars from the Cayman Islands, which is British overseas territory. But again, it would make the project too expensive. I’m looking for a buyer who is a normal person who could afford maybe 500 pounds. And for that amount someone can actually live as that personality. That’s the entry level I’m looking at.
A: But you are providing them with a manual explaining how to get a passport or credit card?
H: Yes, the buyer will receive a complete specification in a book that is the manual for the identity. The book includes a chart of all the other options available to you. For instance, having citizenship in law, the right to reside here, etc.
WHAT CONSTITUTES A PERSON, OR WHAT IS THE DIFFERENCE BETWEEN AN ARTIFICIAL AND A NATURAL PERSON?
A: In legal terms, is it easy to change your name? And do you know of any differences between the UK and other European countries?
B: As far as I know, the regulations on the continent are far more fixed in terms of identity because their systems are more codified. They have a different legal system, which means the state has different responsibilities and powers. The role of the citizen in most continental countries is very different from the UK. Most countries have a history of registration documents, which presume that each persona has a single identity. For instance, I don’t know what the formula is for changing your name on the continent, but I suppose there must be ways of doing it, and people who do it, although I don’t know if or how you have to justify it. In the UK you don’t have to do so at all. This morning I spoke to a barrister who worked on a case involving someone who changed his name, and was able to change his passport almost every three months. He was doing it for criminal purposes, but there is nothing to stop you doing it for legitimate reasons. In other words, in the UK you don’t have to explain why you want to change your name, nobody will ever turn around and say, ‘You changed your name last week, and now you want to change it this week, what happened?’ I suppose that you could say that in the UK the relationship between the state and the citizen differs from that on the continent. We have to register births, but after that things are up for grabs. There are lots of issues about gender and sex assignment at birth, and I think some people who have undergone sex changes try to get their original birth data changed. I’m not sure if they’re allowed to do that, it’s a very complicated area.
H: I think a gender recognition certificate will solve that problem.
B: Yes that could be a solution. Now, let’s take a commonplace situation in which somebody is getting married, and if she wants to change her name on her wedding day, how can she travel on her honeymoon? She can travel using her passport with her maiden name, but by then she is legally somebody different.
H: I would argue that it is the same person but with a different name.
B: That’s right. And if you want to take it further, it’s the difference between what you call a ‘named living person’, as opposed to ‘identities’, and the ‘exchange or trading of identities’.
H: Would you say that the identity is the name?
B: It’s part of it. For example, when you send a letter to someone, you expect the person with that name to open the letter, not someone else.
H: To get back to the person who changes his name, or his passport every three months: In the eyes of a judge he remains the same person because he lives in the same place and has the same legal relationships with other people.
B: In terms of legal relationships he would not have to continue these relationships or remain at the same address.
H: But if he has the same bank account or job, and the same postal address, and he only changed his name, the law would probably treat him as the same person.
B: Yes, but he can change his name, his bank account and the address where he’s living.
H: But if he changes his name and address, opens a new bank account, and changes his gender you would probably say this is a different person.
B: It depends on what you mean by ‘person’. I suppose you could say there is a contrast. The only thing that we know about normal natural people is that they are born and they die. The difference with an artificial person, like a company or trust, is that they have independent legal existences. This means that they can sue or be sued, or can be fined. There are companies that exist in law, and are registered as individual entities that pay taxes and so forth. This is different to a normal flesh-and-blood person. In terms of your ideas, you can take capacities away from a flesh-and-blood person.
H: But can’t the shareholders summon the directors of an artificial person if they want to?
B: It would depend on the various articles, associations and statutes on which the existence of the company is based. But you can have a one-man company without shareholders.
H: I’m a one-man company.
B: With a group of shareholders, you can change their minds if you like, and give the company a different direction. But a persona can give capacity away so that they are no longer legally responsible for their actions. For example, if people think they will be ill in the future, then there are, of course, certain safeguards that have to be complied with. But I don’t know how it compares to other European countries.
Also, in the UK there is no compulsion to have a passport, or any identification – you can live here without an identity. If you want a bank account here you have to provide proof of your name, proof of residence, and an address where you can be contacted. That’s really only because banks are now required by law to keep those records to prevent money laundering. But at one time there were no special requirements. Banks only wanted a residential address so that they could keep track of their customers.
H: Well, I tried to I get a credit union account the other day. I went in with a tenancy agreement, and several club cards. At first, they said I had to present a birth certificate and a driver’s license or passport. I didn’t have any of those, and I told them I could get a birth certificate off the Internet, all I had to do is pay for it. Anyone can do this, so that wouldn’t really prove my identity. In the end they told me that they just want a portfolio of my existence and to bring as many forms of identification as I could. I presented them with a library card, a club card, a television license, and a letter proving that I lived at that address. They accepted them all and opened the account.
B: I suppose if you have an address there is nothing to stop you from sending letters to different names to that address, which is ridiculous. Where did your project end?
H: I don’t know yet. I’m giving it another five years.
THE MOVE TO ARTIFICIAL PERSONS
B: Can you see a time when computers will have identities?
H: I think it’s very easy to do. I was speaking to an expert in robotics. At the moment many people are already used to corporations talking to them through computerised voices over the telephone and public address systems, which are essentially robots. You could argue that an underground train is not a mere legal or financial entity, but that it has some human sensibility because passengers have the impression that they are directly addressed by a person. They booked their trip by credit card, a voice spoke to them and they did what it said. It is not too far a step to argue that that train, or that corporation, is a separate person, or entity.
B: Like the Turing test.[ii]
H: If you can have a corporation that has a legal identity, then it follows that you can have an artificial entity, an artificial person or an artificial identity?
B: I suppose that if the machine harms somebody, you would try to find out who was responsible.
H: If it was a company with its own bank account, you could say that the corporation harmed the other person. But who administers the account? Since he or she is just an employee, they’re not liable for the corporation. Would you go after the direct owner?
B: I think ultimately that somebody has to check things, or at least authorise them. There has to be a controlling mind. What about identities on the Internet, where people create hundreds of them?
H: Yes, there are a lot, but look at Facebook – they insist that you actually have to exist to participate. You have to provide true data. Of course, people break that rule, but Facebook is primarily concerned with covering its back.
B: You could create different personalities with the same date of birth then?
H: Again, I think it is down to a test of coherence and believability. It becomes important to see who this Facebook personality is: Do they subscribe to other services? Are they recognised by other legal persons? Do they engage in legal relationships with other people? If you’re only on Facebook, it could merely be an alias.
B: There are police forces now, certainly in England, who use social media networks like Facebook to track people who are interested in underage sex. Police officers masquerade as 14-year-old girls and enter into conversations with men who are looking for what they have to offer.
H: But when they go to court, the police do have to say that they used an alias and were not actually the 14-year-olds that they were pretending to be?
B: No, but they’re allowed to use it. But I was wondering what would happen if you sold one of your creations to the state? Say it was bought by the state itself? The government buys works of art. What would happen to it, how could they use it?
H: The state has a monopoly on the creation of new identities, but everyone can do it. The police agencies in particular have a huge apparatus for creating identities. They can issue new passports, and so forth. That’s fine. But it’s an interesting question: Why would the state want one of my identities? To test it, perhaps? I think my identities would be far more convincing than those the state creates, because they only issue passports and driver’s licenses, as far as I can tell.
THE LEGAL ASPECTS OF BUYING AN IDENTITY
A: When is it legal to buy an(other) identity?
H: This is what’s called ‘making a market’. This is what happened when the financial markets collapsed and the mechanism of ‘making a market’ was used as one of the major defences. What was done may not have been entirely legal and was probably even beyond acceptable norms, and it backfired, but they were just trying to make a market. I could say the same thing. I don’t think the idea of buying an identity is widely known on the street. But there already is a market for what I call the ‘more elite people’. They can buy a passport and wrap themselves in a corporate shell. This information and knowledge is available to informed people around the world, but not to the general masses, not to those on the street. I would like to bring that knowledge to the general population and expand the market.
A: Would it not be of particular interest for those who want to use it for criminal purposes?
H: Of course that could be a downside, and dangerous once it becomes apparent. At the moment, though, you can do anything as long as you don’t have criminal intentions. I suppose that if you create a market, and the market expands and people start using it for criminal purposes, the state is going to turn around and stress-test it, and will doubtless start imposing limitations.
But then again, not too long ago I was asked to act as a consultant for a European commission. The European Union, or basically the continent, has realised the effectiveness of the natural person, mostly because they see it as a very good management technique, especially with regard to the mobility of labour. It has been demonstrated across the European Union that many people have several identities now – either through dual nationality, marriage, living and working in different places, or historical errors. They are actually two distinct people. That’s fine in the UK, but it’s been very problematic for Europe. I’ve seen no signs of a directive or policy, but to implement and make this work at an instrumental level they decided that human beings could have several natural identities.
B: I searched in Google for your ‘trading natural persons’ and I suppose on the simplest level this is already happening. For example, when making phone inquiries you are put through to a call centre in India, to somebody whose real name is Rahm but who says his name is Richard. At that moment the trade-off is already happening, because there is an expectation that we are talking to someone named Richard rather than Rham. Moreover, now you also have automated telephone calls being made to answering machines, and both machines end up talking to each other.
H: Yes, much like the stock exchange, where computers talk to each other.
B: And worse, when trading patterns decline, they automatically sell your shares whether you want to or not. The computer controls financial crashes.
H: Indeed, high frequency trading. Trading for the sense of trading because they earn a commission on the trade. Anyway, it’s safe to say we’re used to robots, because we’re already using them for all kind of things.
THREE SCENARIOS: INCAPACITY, TRANSFERABILITY AND SENTENCING OF ARTIFICIAL PERSONS
1. Incapacity: others taking control
H: There are three specific areas that caught my attention in my research: what happens with regard to ‘incapacity’, ‘transferability’, and ‘crimes of imprisonment or some kind of fine’.
B: Yes, but you can’t physically lock up a company.
H: But you can freeze its assets.
B: No, because when you’re in prison there’s nothing to stop you running your bank accounts, and things like that. You can freeze a natural person’s assets.
H: Okay, but what happens if a company did something terribly wrong?
B: Then it can be fined, and if they cannot pay the fine the company can be wound up, and the assets sold to pay it.
H: So it’s a form of execution?
B: It is terminal. If somebody is made bankrupt, they can always apply to discharge the bankruptcy after about a year.
H: And artificial persons can be bankrupted as well?
B: Yes, that’s called voluntarily liquidation. I’m not sure if you can revive that artificial person with exactly the same name though; you may have to alter the name of the company. It’s called the ‘Phoenix existence’, which is when something is reborn from the ashes remaining after its destruction. With a natural person, the same person could then continue being bankrupted and discharging their bankruptcy again and again. I suppose there would be a difference. But incapacity is mainly to do with mental capacity.
H: Does being drunk count as incapacity?
B: Yes, it does. If you sign a contract when you’re drunk, the law states: ‘Individuals who are clearly intoxicated are generally deemed incapable of entering into legally binding agreements’.
H: How about if you have an existing legally binding agreement and you’re drunk? Can you make a claim against that?
B: ‘A drunken person can choose to rectify a contract once they are sober.’
H: So, if I made a contract with a bank when I was sober, and then spent the next ten years in a drunken daze, would I have access to that service? If I walked into the bank completely drunk and said, ‘I want to withdraw some money’.
B: They might turn around and say, we need a third party to confirm your information. That is where the power of the system returns. If they refuse to give you your money because they’ve noticed that you’re blind drunk every time you come into the bank, your answer to that could be either to get proof that you are okay, or, if you didn’t want to do that, you could give somebody lasting power of attorney and try to persuade the bank that it was within your rights to do so.
H: And in terms of drunkenness, if I had a contract and wanted to end it, but I was drunk, could that be considered void as well, with the contract continuing until I sobered up?
B: I suppose if you’re drunk, the other party could turn around and say, ‘We don’t think you’re in the right state to make this type of decision’. But for instance with a contract of employment, if you kept turning up drunk and couldn’t fulfil your contractual duties, then sooner or later the other party could say, ‘We regard your behaviour as so far beyond the terms of the contract that we are going to terminate it’ And if you then try to enforce the contract by claiming compensation because they’re in breach of the contract, or allow you to continue working until the contract ends, you would lose because there is no way a court would uphold the right to be drunk under those circumstances.
H: So it’s possible to have several contracts that can be nullified at the start, the midterm, or at the end due to alcoholic incapacity.
B: Yes, if incapacity affects your mental state then it would be the same as some other form of perhaps natural illness or drug addiction. I’m sure that drug addiction has led to some people having their legal capacity taken away from them.
H: To summarise it in another way, if the human being who possesses that natural person is incapable of managing his or her affairs properly, then that natural person can be taken away from that human being. Can it be permanently taken away?
B: It depends on the type of power of attorney.
H: Has there ever been a precedent that…
B: Yes, if somebody is in a mental institution, in which case they cannot take decisions. But if you’re serving a life sentence you can still control all your financial interests.
H: But you can’t vote?
B: No, not at the moment, but it’s a tricky thing. Europe has said that everyone should be able to vote, regardless of civil status. I don’t know what the situation is abroad; I think that even incarcerated criminals can vote in certain circumstances in France. They are now working around the lines, because incarceration deprives people of the freedom to do what they want in terms of physical activities, but now people do have access to computers. There are issues about the use of Internet, but there is no reason why people who have been incarcerated cannot run their financial affairs from prison. They aren’t prevented from doing this, whereas a mental health patient probably would be.
2. Transference: Trading natural persons
H: Do you think that trading natural persons will ever happen?
B: I suppose every employment situation involves somebody marketing themselves, and there’s nothing stopping you from you selling yourself, i.e., allowing yourself to be completely owned by someone else, providing the agreement between them does not break the law.
H: The scenario I was imagining would be, for instance, if Annet had a new job in London, you could employ her in your chambers and pre-purchase an identity. She would only be here for a few days and because all the normal paperwork would take too long, you could use the identity. You can have a natural person who is constantly employed here. Annet can come and assume the identity of that natural person, pay taxes, have the rights and duties of that natural person, and then go away again, taking it with her. Or someone else could use it with you retaining ownership. Would that be possible? Would it be easy to administer?
B: I suppose, if no payment is involved, you wouldn’t have to notify anybody. But the moment you, as an employer or organisation, have to inform government officials for tax or national insurance purposes, then the state becomes involved because that natural person is engaging in a relationship with the state. Then it will become more complicated.
H: Can you transfer the power of attorney? For instance, if I was incapacitated and I nominated you as my attorney and you are effectively managing my business, could you then transfer that power of attorney to Annet without my approval? In effect I would be a slave and you would be making money by trading my identity.
B: Well, this is what I found: ‘The person making the power of attorney should appoint the Attorney they trust and in whom they have complete confidence, and must be over eighteen, and not undischarged, or interim bankrupt. More than one Attorney can be appointed to act together, independently or together, in respect of some matters, and independently in respect of others. If the Power of Attorney is silent on how two or more Attorneys are to act, they must act together. Under LPA [Lasting Power of Attorney] it is possible for the person making the Power of Attorney, to the point of replacement of the Attorney’.[iii] And it seems that the person granting the power of attorney would have to agree. ‘Under a Property and Affairs LPA the Attorney will commonly be able to pay bills and expenses, collect income and benefits, manage Bank and Building Society Accounts, buy and sell property, complete and submit Tax Returns and make gifts within the statutory limits. Under a Welfare LPA the Attorney is likely to be given power to consent or refuse particular types of healthcare, including medical treatment and may even be able to consent to or refuse life sustaining treatment on behalf of the person that has made the LPA. The Attorney may also be able to decide whether the Donor remains in his own home or moves into residential or nursing care and also more day to day decisions such as the Donor’s diet, dress or daily routine. LPA’s can be restricted or contain conditions limiting the Attorney’s authority. The Donor can also, if he wishes, include guidance for the Attorney in the LPA. This guidance is not legally binding but could be invaluable to the Attorney’.[iv] So that’s the definition. It’s very broad. Would you entrust me with your power of attorney?
H: So far, yes.
3. Sentencing: arresting and trials in absence
B: What is your last issue, looking at crimes?
H: For instance, if I commit an offense, a parking violation, the police aren’t going to arrest me for an offense. My natural person will be summoned to court and/or fined.
B: The first thing that will be asked is who was driving. There have been all kinds of issues, because a natural person can say. ‘There were two of us that night and I can’t remember who was driving’. And this causes all kinds of legal problems, because the legal process ends there.
H: The other example is if I physically assault someone, I would be arrested or not?
H: There is a quite clear distinction between the two.
B: Yes, there are loads of legal decisions covering very specific circumstances, not just arrests but also situations when the police can stop you to talk to you. If you don’t stop and talk to them they can decide whether to arrest you or not. They can ask questions to try to establish your identity, but they cannot search you. The rule of law is unbelievably strong in terms of protecting an individual’s rights from the power of the state. This is why the continental idea of an identity card can only be enforced if the police are granted the power to demand to see your identity. It was going to be a voluntary system in England because even if they had implemented it, there was still no way that the police would be able to stop you to check your identity. Even now, if the police stop you without probable cause, you have a certain number of days to produce your documentation. There is obviously some kind of philosophical gulf between England and the continent in terms of the relationship between the state and the individual. It is connected to what we call the ‘burden of proof’, which remains with the state. If the state takes someone to court, it usually has to prove the case against him or her. We have the right to silence and although it is being whittled away, it still exists in theory.
H: Could you summarise those situations in which a human being would be arrested, or the natural person would be subject to some kind of process that is almost independent of the human being, so that the process can take place in their absence.
B: You can have trials in absence.
H: Even for murder?
B: Yes, you can tell me what it is you want to be said and I could speak on your behalf.
A: Could I make an appeal without being present?
B: It’s very difficult; you would have to provide instructions. I don’t think the court of appeal would hear the appeal. I suppose you could instruct the solicitors, but the court of appeal might turn around and say you can make an appeal if you are actually present so that you can pursue it. But quite recently there have been appeals on behalf of dead people, for example, by families who worry about a historical or social stigma. And pardons have been granted to people who were shot for cowardice during the First World War. The Criminal Case Review Commission can refer public-interest cases to the court of appeal. And then the problem is whether the court of appeal judges it by today’s standards, or by historical standards. And they tend to apply today’s standards.
H: But for what kind of crimes will one be definitely arrested? So far I haven’t managed to find a handy guide.
B: Arrest full offenses. An arrest full offense is one that you can be arrested for. There is a definition.
H: Is there a general legal basis?
B: ‘Arrest legal offences’ are those offenses for which you can be sent to prison and it depends on the seriousness of the offence. For example, what happened in the old days is that prostitutes couldn’t be send to prison for prostitution so they were fined, but they could be send to prison if they didn’t pay the fine. But normally it’s a self-serving definition. It’s any offence where the state has decided that its seriousness warrants the police being given the power to take the natural person and incarcerate him or her. But it is very easy to work out what is an arrestable offence, and what is not. On the other hand, there are very strict limits to how long people can be held. The police have to apply for extensions, and at that moment they either have to let the person go, or press charges, which is the crystallisation of the state’s allegation against the person who may have committed a crime.
H: If a human being can have multiple natural persons, for example, the European Union accepts that Annet has two of them, because she’s attending university here in London and has another life in Amsterdam, then wouldn’t biometrics be the way to manage them. They will come along and say, okay, which Annet is this? Is this the English one, or the other one? Biometrics, instead of being a considered force of oppression, could be seen as a thing of liberation. I was trying to persuade the credit union the other day that they should use biometrics, because most of the people who use their services are street people. They don’t have the capacity necessary to manage their natural persons, which is why they live on the street. But with biometrics they can all come in, place their thumb on the reader, and ask the teller to deposit five pounds in their account.
CHANCES OF SUCCESS
A: What are your chances of succeeding with this project?
H: It is down to economics and if the European Union carries on becoming increasingly more mobile and there’s enough economic growth. If there is a financial incentive for it, the idea that human beings can have more than one natural person is very likely to be implemented and instrumentalised in computer systems throughout the European Union. There must be some acceptance or directive from above. In the end many of these things come down to convenience. For instance, if you met Bob before appearing in court and you say, ‘I’m Annet from Amsterdam’, but you’ve actually got a British passport and live here, than the court might say, this British person is the person we are going to deal with. Why would they deal with the Dutch Annet and all her paperwork from the Netherlands, there’s no need to do that.
B: People can have two passports according to English law. We still recognise people’s right to have an independent existence and be accountable to another state, but they aren’t mutually exclusive. And both passports will probably be in the same name.
H: People often have passports in different names, for example, because they got married, or their name cannot be written in other alphabets, etc….
B: Yes that’s true. How did the people you spoke to at the European commission react?
H: They hadn’t thought of it, and after I explained it, they thought it was pretty obvious. It already exists and is likely to continue and become prevalent. Also, when Annet is here, people don’t want to know what’s going on legally in the Netherlands, she’s just here. For example, her university only wants to know where she’s staying in the UK, what her bank account number is and how long she‘ll be here. It is just a kind of ease, ease of interaction.
B: What happens if people have avatars? There are role-playing games where they can earn credits that they can actually buy and sell. This means that you can create different online identities.
H: I would see that as a kernel, a seed of an identity.
B: Presumably you can also sell that. The person at the keyboard only needs to have access.
H: Unless you are conducting relationships with other bodies with that name, then it would still be seen as an alias, wouldn’t it?
B: An alias yes, but I mean, what’s the difference? If you ultimately end up being able to buy and sell an alias and turn it into hard cash, then it doesn’t matter who is at the other end of the connection. You can say, ‘I will sell you my created identity in that particular space or Internet world’.
A: But you’re still confined to that virtual world.
H: Yes, and if that identity links to other online worlds, beyond that particular space, or with other entities, then I would say that it is another person. The big difference, though, between a human being and a natural person, is that a natural person can be administered remotely, and be in many places at the same time. It’s almost like the foundations for a network, electronic networking. To manage me physically you’ve got to be here, but who knows what is going on with all those different bits of paper around the world that are currently in my name. Is my personhood being adapted or modified without me even being aware of it, and how is it being changed? In a way this has been going on for hundreds of years, hasn’t it?
B: Yes, it reminds me of the moment when cheques were invented. People deposited gold and bullion coins with goldsmiths and asked for a receipt, which became a ‘bankers note’ that represented the bank’s promise to pay on demand the amount specified in that note. The goldsmiths realised that not everyone wanted their money at the same time so they lent it to other parties. But if all their depositors wanted their all their money at the same time – effectively a run on the bank – then the bank suddenly found itself in deep water.
H: I guess we agree on most things.
B: Yes, absolutely. I find it difficult, the move from the solid world to thinking about what lies behind it because we take it so much for granted. We live in a time of enormous technological advances where people can do these things. In the old days you lived in one place and you were one person. Somehow that seemed easier….
[i] A credit union is a cooperative financial institution that is owned and controlled by its members and operated for the purpose of promoting thrift, providing credit at competitive rates, and providing other financial services to its members (http://en.wikipedia.org/wiki/Credit_union#cite_note-0).
[ii] The Turing test evaluates a machine’s ability to demonstrate intelligence. In the test a human judge engages in a natural language conversation with a human and a machine, each of which tries to appear human. All the participants are separated from each another and from the machine. If the judge cannot reliably distinguish between the machine and the human responses, the machine is said to have passed the test.
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