The New York State 2021 legislative session wrapped up late last week with a handful of firearm bills passing the Senate and Assembly. On a new episode of Policy Outsider, Joe Popcun, executive director of the Regional Gun Violence Research Consortium and director of policy and practice at the Rockefeller Institute, and Nick Simons, project coordinator at the Rockefeller Institute, discuss the major firearm bills that will be sent to the governor, the issues those bills address, and how research can best support policymakers as they seek to disrupt the cycle of firearm-involved violence.
Guests:
Joseph Popcun, Executive Director, Regional Gun Violence Research Consortium and Director of Policy and Practice, Rockefeller Institute
Nicholas Simons, Project Coordinator, Rockefeller Institute of Government
Transcript was generated using AI software and may contain errors.
Joel Tirado 0:04
This is Policy Outsider. I’m Joel Tirado, director of communications at the Rockefeller Institute and guest host for today’s episode. The New York State 2021 legislative session wrapped up late last week with a handful of firearm bills passing the Senate and Assembly. On today’s episode of Policy Outsider, Joe Popcun, executive director of the Regional Gun Violence Research Consortium and director of policy and practice at the Rockefeller Institute, and Nick Simons, project coordinator at the Rockefeller Institute, discuss the major firearm bills that will be sent to the governor, the issues they address, and how research can best support policymakers as they seek to disrupt the cycle of firearms involved in violence.
Joel Tirado 1:15
Joe, Nick, thanks for being on the show. Before we jump into our discussion of the firearm bills that passed in the Senate and Assembly during the 2021 legislative session, Nick, could you give us a sense of the gun violence issue in New York State?
Nicholas Simons 1:34
Sure, Joel, thanks for having me on and having Joe on as well. I’ll start with maybe some high-level firearm violence statistics in the state that might help set the table for the rest of this conversation. If you look at specifically New York City data for the first six months of this year, we’re seeing both higher shooting victims and higher shooting incidents from last year. And last year was a large spike from 2019, which was the year before. These rates of firearms violence are only increasing. As an example, there have been 602 shooting incidents since January of this year compared to only 358 in the first five months of 2020. So that’s almost a 70 percent increase. There’s also been a sharp spike in shooting victims. We’re at 687 since January of this year compared to only 409 from January to the beginning of June last year, a 68 percent increase. In 2020, the state as a whole saw a 75 percent increase in shooting incidents and an 82 percent increase in shooting victims. Shootings in the upstate metro areas like Albany went up 110 percent. That was for Albany, specifically. Shootings in Buffalo went up 96 percent; in Rochester, 70 percent; in Syracuse, 72 percent. So far, from January to April of 2021, shootings across the state are up 46 percent year-to-date from last year. And I’m sure we’ll speak about these particular statistics when we unpack some of the legislation from this year, but the rate of illegal firearms being recovered in crimes is also up over the previous years. In that respect, there’s many aspects of the firearm violence issue in New York State that are converging at this particular moment, which explains the breadth of action from both the executive and the legislative branches so far.
Joel Tirado 3:21
Is this a New York thing? Or is this a national uptick?
Joseph Popcun 3:27
Nick, that’s great. I think we have seen it across the country really in terms of gun violence after the pandemic induced lockdowns of last year. Last year was, as Nick described it, really a record year in terms of shootings and shooting incidents. And now we’ve seen that trend carry over into this year, which has been problematic from a number of different perspectives but really problematic to policymakers who might have been viewing this as a one-off year of, “okay, the pandemic was so unique and disrupted society so much that we’re getting back to normal.” And unfortunately, what we see is people getting back to normal social activities but also a heightened rate of shooting incidents. We have been looking and talking to practitioners from around the country who are describing very, very similar trends.
Joel Tirado 4:19
So Nick, the figures that you described or that you presented, those are in 2020 and 2021. Before that, in the few years before that gun violence in the state, trending upward? Downward?
Nicholas Simons 4:34
So New York, unlike some of the other areas of the country, and we have a great gun violence dashboard that maps this out, both in terms of homicides and suicides in New York was on the downward trend at least as it relates to population adjusted metrics, which is how the CDC, Centers for Disease Control, at the federal level charts these statistics. You can always look at raw counts but I think population adjusted numbers make sense. New York was in a better place than it obviously was in the 1990s, for example, but was also trending down within the past decade. In a lot of ways, these recent couple of years are very concerning and bucked the trend in many ways. In other states, in the south like Louisiana or in the Midwest like Missouri, they were seeing higher suicides, firearm suicides, firearm homicides, so it’s not necessarily changing a trend there. But, as Joe said, across the country, there’s increased violence. Even some of the places that we’re seeing those upticks are now seeing them exponentially quicker than they had been.
Joseph Popcun 5:34
Absolutely, I think the 20 year relatively uninterrupted trend of declining firearm violence mortality was reversed. And we saw that starting to happen a little bit in 2019 and 2018, obviously had a lot of firearm involved deaths, many of them attributable to suicides. But now we’ve seen more homicides taking up. And that’s obviously what has caused a lot of consternation but also a lot of focus on the issue of gun violence in communities. And that I think was really one of the impetuses is for the legislature taking up some bills as recently as last week when the legislative session ended.
Joel Tirado 6:16
So we see this uptick over the past, 2020, 2021, it’s a lot of 20s in there, when you say both dates consecutively. Do we have a sense of the causes of this uptick in violence?
Joseph Popcun 6:31
There’s a lot of discussion and debate in the academic community and in practitioner community. And I think you’ve seen media reports pointing to criminal justice reforms from the societal pressures of the COVID response and the shutdown. But the simple fact is that no one really knows and has the crystal ball into what the root cause of this recent gun violence is. However, while the researchers continue to unpack the evidence, crunch data, do surveys, policymakers, legislators, and practitioners have to grapple with the problem of gun violence that’s here today. What we have been doing at the Regional Gun Violence Research Consortium here at the Rockefeller Institute is looking at law and policymaking as a way of tracking over time legislative interest, executive priorities. So we, in 2020, put out an analysis of 2018 and 2019 bills that were introduced on firearms and categorized them in different typologies or different types to look at where legislators and the executive were focusing their energies to combat firearm violence. That same type of analysis and template is something that we’re doing for 2020 and 2021. We’ll be able to share some findings as they go. But what was really notable is that over the past week with the end of the legislative session, we saw the state legislature, both the Senate and Assembly, take up roughly half a dozen bills that all were to combat the firearm epidemic that we see right now. Those things were items that ranged from firearm specific prohibitions for individuals all the way through combating new technologies. So I think we can unpack a little bit of what we saw them tackle at the end of the session, which might provide insight into what is going to happen next year in legislative activity.
Joel Tirado 8:30
Well, that sounds like a natural pivot into what happened this legislative session. Nick, maybe you can give us an overview of the bills that made their way through the Assembly and the Senate and what ended up passing?
Nicholas Simons 8:47
Surely, surely. So I think the natural place to start is another area where we’ve been doing a lot of work lately is with ghost guns. We did just release a policy brief in the last couple of months talking about ghost guns, where there’s been some state action. There’s been some federal action, specifically in this session. I guess I should say what ghost guns are for anyone listening who doesn’t know, ghost guns or homemade firearms that don’t have unique serial numbers and as a result cannot be traced by law enforcement when they’re used in a crime. So in a traditional situation, law enforcement uses the serial number of a firearm to find out the manufacturer, the retailer, the first owner of a firearm, and the transferees after that first owner to connect a suspect to a firearm that’s recovered in a crime. Ghost guns make this a lot harder. They’re not considered firearms, so they don’t require background checks when you’re purchasing them. And that’s the context that the legislators this year in New York were using when they wrote these bills. Both of them, I think, were actually introduced in a previous session, so this is something that’s been on their mind for a while. The first one is a Kaplan and Levine bill, the Scott J. Beigel Unfinished Receiver Act. These bills, including the Hoylman and Rosenthal bill that I’ll talk about after, are very interrelated. They address some of the similar aspects of the issue but also define the issue in a bit of a different way. So, that bill defines unfinished frames and receivers, which are the essential pieces in these homemade firearm kits that then are turned into ghost guns. They define it as “material that has been shaped or formed for the purpose of becoming a functional frame through drilling or other means.” And again, this is how the ghost guns start, unfinished parts that need that slight adjustment at home to become ghost guns. The frame itself is just the lower half of the firearm. This bill, specifically the Kaplan and Levine bill, also prohibits the possession of unfinished frames and receivers by those people who aren’t licensed gunsmiths. A gunsmith, and I’m paraphrasing here to save on an extra-long definition, is any person, corporation, or company who engages in the business of repairing, assembling, cleaning, engraving, or who performs any mechanical operation on firearms. These gunsmiths are licensed by the state. This would not include hobbyists or people at home that are performing these actions. And then the last function of the bill is that it creates crimes of criminal sale for those unfinished frames of receivers. So again, new definitions prohibits possession of these unfinished frames or receivers by anyone who’s not a gunsmith, creates a crime for criminal sale. The Hoylman bill does very similar things. Although it defines these unfinished frames and receivers as ghost guns, it requires them to be serialized. Serialized means imprinting or engraving that serial number, we spoke about before, that would make solving crimes much easier. And also requires the gunsmiths who will be handling these unfinished frames and receivers to register them with the state police in order to trace them. So important to note that the Department of Justice published a proposed rule at the federal level that would address some of these provisions that are in these new bills. These federal regulations would require serialization of ghost guns, require purchasers to pass background checks, impose requirements on sales, and record retention. It does much of what these bills would do. However, the chief differences at the federal level, it’s still legal for individuals to make unsterilized firearms at home for personal use as long as those individuals aren’t selling or transferring those unmarked unfinished parts. New York wouldn’t allow that. Only gunsmiths can possess these unmarked parts, which is just a small difference. But states like Rhode Island and Hawaii also prohibits the possession of ghost guns generally. While places like Connecticut and New Jersey place restrictions similar to New York on ghost guns but allow for possession.
Joel Tirado 12:37
What are the differences between the DOJ’s proposed rule and the bill passed by the Senate and Assembly? And why would legislators take action on this issue if it is being addressed by federal policy?
Nicholas Simons 12:55
Yes, they do similar things. I think the most important thing to note here is that the proposed rule won’t be final for several more months. So the idea here is that New York legislators are addressing the issue instead of waiting for federal action.
Joseph Popcun 13:08
And I would also just say that given the recent experience with changing federal administrations, we’ve seen that different administrations can have different priorities. When President Trump was in office, his DOJ did not make this regulation and did not go out of their way to combat ghost guns in the same way that Biden has now committed his Department of Justice to do so. I think, the New York State Legislature acting on this front is a little bit of trying to have some consistency and to not really be reliant upon the federal government’s definition, which could change if it was another administration.
Nicholas Simons 13:48
This is something we talked about when I did a podcast on ghost guns, was the areas of or unforeseen gaps that could appear in a proposed rule once it goes into enforcement. I think that these New York State laws only serve to bolster that effort and try to fill in some of those gaps should they appear.
Joseph Popcun 14:04
It also helps in terms of disproportionally the criminal justice system is locally administered. You see police when you’re driving down the street, they pull you over to give you a ticket. Same with the state police. You’re not often getting pulled over by federal police for speeding. Similarly here, when you’re talking about whose most likely to come into contact with a ghost gun, it’s going to be local law enforcement, state law enforcement, who may view it as a jurisdictional issue and not be able to as adequately enforce the federal law as they see it. It really does create another opportunity and just reinforced that ghost guns need to be tracked and need to be treated like other firearms.
Joel Tirado 14:48
So that’s the ghost gun portion of what was accomplished by the New York State Legislature. But I know there’s more, so what else?
Joseph Popcun 15:00
There were a few other ones. One that’s really interesting and that I think people are going to be debating and digesting for quite some time is this firearm industry immunity bill. So, Senator Myrie and Assemblymember Fahy passed what is really a manufacturer’s responsibility bill. It is predicated on the law the federal Congress had enacted in 2005, the Protection of Lawful Commerce in Arms Act. That act shields from civil liability most gun manufacturers and the gun industry. And that civil liability shield is not applied to most other, if any, goods that are provided by manufacturers or sellers except for firearms. So that shield has kept manufacturers from being held civilly liable, being sued whenever their products create a danger, hazard, or create harm. So this bill is an attempt to have a state law that pierces that immunity. It does so in ways that are novel in terms of law and policy. It amends the state’s general business law to create a public nuisance that’s defined as the dangers to safety and health that are caused by the sale, manufacturing, distribution, importation, and marketing of firearms. And then having created that public nuisance, use that as grounds for the attorney general for different municipalities and for individuals to sue manufacturers and sellers who don’t abide by certain best practices related to securing their firearms or making sure that they’re only selling to people who lawfully can have the firearms. It’s really designed to create an opportunity, and one that hasn’t been afforded since 2005, to individuals and to governments to hold manufacturers and firearm sellers more accountable. The reason why I say this is going to be debated a lot is because there has been several other challenges. Most notably in 2008, the City of New York had sued a number of gun manufacturers and gun dealers for a very similar concept and it was dismissed upon appeal. The creators of this bill are trying a very similar strategy but are going to be creating the express legislative intent of, “No, we mean for this bill to create this condition to allow individuals to make claims against gun sellers and gun manufacturers.” It is going to be sent to the governor for either sign, veto, or potential chapter amendments. I think there are going to be a lot of liability issues that are discussed. A lot of federalism issues. Is this preempted? Will it be challenged right away? What would the federal judiciary think and how will they debate it? I think this is going to be one that really is a national conversation starter around liability. It’s something that President Joe Biden had campaigned to repeal this congressional act, this Protection of Lawful Commerce in Arms Act. So it is going to definitely be in the news and definitely something that we’re watching closely.
Nicholas Simons 18:21
And there’s two more bills, I think, just to hit. Joel, you may have questions afterward, but I’ll just stick these in here. There’s a Kavanaugh and Paulin bill that prohibits the sale, purchase, or transfer of firearms to anyone with an outstanding warrant for a felony or serious offense. That’s pretty straightforward. That’s the one big provision in the bill. And there’s a Gianaris and Richardson bill that would require the Division of Criminal Justice Services, the DCJS, to publish quarterly reports on firearms, rifles, shotguns that are used in crimes in New York State. So beginning October 1, 2021, according to the bill, the reports would include, at the very least, the county and state of origin of the firearm, the county and state where the firearm was purchased, whether the firearm was purchased by the perpetrator of the crime or by another individual, and lastly, whether the perpetrator has a license or a permit to possess such a firearm. This bill is interesting because I think it will involve more law enforcement and criminal justice agencies than just DCJS. I’m sure the state police will be involved to some extent, maybe focus on the local side. While it’s seemingly a narrow scope for a bill, there are likely a good amount of players not explicitly stated who will be involved. From a research perspective, it’s great. It’s more data. It gives the public the ability to learn about the issue. It gives legislators further grounds and further evidence to legislate in the future. In that respect, this is one that I’m really excited about personally.
Joel Tirado 19:45
Are there existing reporting requirements for DCJS? Is this is an expansion of reporting?
Joseph Popcun 19:52
Yes, DCJS has a bunch of statutorily required reports. They also do a bunch of discretionary reports. They have several on their website related to gun violence but this would be added to that list. But just to circle back on the warrants bill, that’s actually very similar to what the governor proposed in his State of the State. This is again, coming from the Trump Administration, when in 2017, the US DOJ had narrowly interpreted a background check provision that was called the Fugitive of Justice Provision to be that if you had an outstanding warrant, it was only held up against you to prohibit you from collecting a firearm or purchasing or possessing one if you fled from one state to another for the purpose of evading prosecution. So you could have a warrant out for your arrest and as long as you didn’t meet the category of fleeing prosecution across state lines, you could have passed a NICS check, the background check that’s set up by the federal government. So obviously that loophole was something that the state wanted to remedy. And the governor had identified the issue, I believe, last year and then this year had set forth a legislative remedy in his executive budget, which was not in the enacted budget, but then became the Kavanaugh Paulin bill on outstanding warrants. And so again, since it’s now reflected as a crime in state law, it will be reported to NICS and would prevent people who have this type of warrant from being able to purchase or possess a firearm.
Nicholas Simons 21:17
This was also one of Biden’s policy platforms during his campaign, was to end the fugitive from justice loopholes. So we could see something at the federal government, if they move.
Joel Tirado 21:26
I want to just circle back briefly to the immunity bill. I’m a gun manufacturer, you didn’t know that about me. And I am selling these firearms that I anticipate are going to be used by people for whatever recreational purpose they would use their firearms for. I have no reason to believe that my weapons are going to end up in the hands of criminals. So what is the reasoning behind putting in place this law that would hold me accountable for just engaging in a normal, at least what I perceive to be a normal, sale to a consumer?
Joseph Popcun 22:16
It’s great question. I think it’s one for the courts quite honestly. But the rationale is that, and this is really the argument, when you look at the majority of guns that are used in crimes in New York, somewhere between 70-85 percent of them are from other states. And they’re made through straw purchases. They come up the iron pipeline, from Virginia, from Florida, and from other states. Then they’re used in crimes here, where they’re then intercepted by law enforcement agencies and they’ll now be reported by DCJS if that bill is signed into law. But the thought is, the manufacturers and the sellers have created the conditions for this nuisance to the public that is endangering both health and safety. And they’re doing so by not preventing straw purchases, not preventing…
Joel Tirado 23:11
Just to jump in real quick, straw purchases, twice I’ve heard that, but for the uninformed, aka me, what is meant by that?
Nicholas Simons 23:19
Come on, you’re a gun manufacturer. [Laughter]
Joseph Popcun 23:21
Straw purchases are when I’m buying it on behalf of somebody else, so that I can pass the check and take possession of the weapon but then sell it to another person or give it to another person who might not be able to pass a background check. It is creating an illicit market for firearms that are legally purchased. So their contention and the intent behind the bill is that there have been points of failure that the consumers and New Yorkers have been failed by the manufacturers and the sellers not living up to their standards in how they’ve created the firearms, stored them, sold them. The culmination of those failures has then had direct harm on New Yorkers, including local governments, including individual citizens. And that there ought to be a way for people to be able to hold them accountable via the court system. In this case too, by civilly filing a suit against them for damages related to the harm or the deaths or other things that are caused by the use of their products. It is very difficult in terms of law and policy to craft something that I think would be able to balance all of the equities in this way. However, it is something that I think the civil litigation process has been used for most other American industries and products to make sure that Americans have a way to hold people accountable. It is not as if this is a novel concept of accountability, it’s that the industry has been treated with a special status. And that is now being called into question.
Nicholas Simons 25:16
Just to supplement what Joe was saying, there is a feeling that the ATF at the federal level has in some way not enabled but hasn’t been as quick to act or as strict on some of these manufacturers and retailers as they could have been. So even in this Zelner, Myrie, and Pat Fahy bill, Senator Myrie and Assemblymember Fahy, they cited a report that was released in May of this year, relatively comprehensive put out by The Trace and USA Today. And that studied the ATF. ATF is the Bureau of Alcohol, Tobacco, Firearms and Explosives. It’s the federal regulatory agency for firearms. They released a report, Trace and USA Today, on ATF citations to firearm owners across the country and found that the ATF was quite forgiving, I’d say, of sellers who violated certain regulations. Again, this was cited in the legislation when they were speaking about some of the impetus for why they acted. There were businesses that didn’t conduct background checks, didn’t log sales properly, and were cited for this. Didn’t log transfers between firearms to different owners, allowed purchasers to buy guns in quick succession, all these illegal activities. And even after some of these businesses had been cited multiple times by the ATF, the agency still didn’t revoke their license to sell. Some of these businesses that the ATF let slide ended up being part of large scale gun trafficking networks, moving firearms between states on the iron pipeline as Joe is referring to. And I wouldn’t be surprised if other legislators saw that report and tried to act in a similar way. But you’re right, it goes exactly back to what Joe is saying about how you really have to manage all the equities of this particular policy problem, one that’s more complex than I think people would initially believe.
Joseph Popcun 27:03
think that actually leads well to the last bill that had been enacted as a part of the budget, which is legislators who are up here in Albany and now returning to their districts, they are grappling with gun violence as it happens in their community on the weekends and really having to be the face of state government in so many ways to their constituents. One of the things that has been a long standing priority for both the Senate and the Assembly has been community-based violence intervention, interventions and interruption work. This year, both the Senate and the Assembly had additional funding that they had proposed in their one house resolutions as part of the budget process. Then there was a new act that was established as part of the budget, which is the Community Violence Intervention Act, which was sponsored by Senator Myrie, and was included as a part of the final budget package. And really, it creates stable support and a network for hospital-based violence interruption programs and community-based violence intervention programs. It uses federal Victims of Crime Act funding as a stable source for that funding. I think the state has really led the way and the Division of Criminal Justice Services completely overhauled the way that community-based violence interruption work is implemented. The state has snuck programs, which they sponsor in 11 sites across the state and with roughly, I believe, $3.5 to $5 million provides direct services in the community to community-based groups that go out and disrupt the cycle of violence. They identify people who are likely to retaliate in case something happens or likely to be involved in violence to begin with. They really structure interventions to make sure that they’re not pursuing those paths that they’re able to amicably resolve conflicts. And the SNUG program has been nationally recognized by many different reports and accrediting bodies as one of the best models in the country. One of the things that makes it so remarkable is the oversight and accountability that’s built into the system. The Division has statewide hiring standards, training standards, they make sure that each of the communities is learning from one another so that they can tailor their interventions and their outreach to the community in new ways that are connecting to young people who are disproportionately involved in this violence and victimized by this violence. It’s been a tremendous program and building upon that the city has their own program that they administer. So this funding is coming at a time where there’s also likely to be additional federal funds that are going to be made available to different states. And so…
Joel Tirado 29:53
Through the American Rescue Plan?
Joseph Popcun 29:54
Yes. And so there’s going to be an enormous influx in federal funds. In addition to the existing state funds that are going to be used for community-based violence and interruption work (we are tracking that closely), but also really can be a way to mobilize change within each of the communities and also have groups that stand up and lead the charge in identifying the key actors and the key victims who are likely to be with each community. It’s going to be a continued topic of interest, I think, for legislators and as we get to each year’s budget will be something that we’ll watch closely and that will be discussed closely. But it’s great to see that this is being reflected now. I think my one question from having reviewed the bill is just any eligibility concerns around using a federal source of funding. A lot of them have provisions attached to them. They can be used for this but they can’t be used for that. So I think that’s one area where program administrators will have to sift through and make sure that its allowable uses. But the intent is certainly laudable and will likely make a huge difference in these neighborhoods.
Joel Tirado 31:12
And this SNUG programs. SNUG is?
Joseph Popcun 31:15
Guns spelled backwards. That’s the acronym.
Joel Tirado 31:19
So that’s the session. Right? Those are the sort of standout pieces of legislation that have come out of 2021 in New York State. Where does the state go from here?
Joseph Popcun 31:34
So I would say, two of the priorities that the governor had set out in his State of the State were sharing crime gun data, which it sounds like we’re going to have a reporting requirement. That seems to be one area where there could be additional movement to require more submission of crime guns and ballistics to the ATF and to other places, so that we have better reporting that’s available from DCJS or other agencies, and then establishing a domestic violence misdemeanor. There is a way to do it. Now, that’s a pretty involved court process. When that is not followed, then there is not a person-specific prohibiter labeled on an individual who might be convicted by a domestic violence misdemeanor. So that’s legislation that the governor has called for for several years. That’s one that I think is always likely going to be under debate. But, in general, as we look to what’s going to happen over the next few months, we know that the legislative session has come to a close. We know the bills that have been passed that we talked about—ghost guns, firearm industry immunity, the outstanding warrants bill, DCJS quarterly reports—all of those will be sent to the governor’s desk for signature and action before the end of the year. The community-based violence intervention bill was already enacted as part of the budget. So that is really setting for a pretty busy rest of the year in terms of the governor’s review of these bills and his signature, veto, or chapter amendments.
Joel Tirado 33:16
Thanks again to Joe Popcun, executive director of the Regional Gun Violence Research Consortium and director of policy and practice at the Rockefeller Institute, and Nick Simons, project coordinator at the Rockefeller Institute. Check out expert analysis from the Consortium’s gun violence researchers by visiting our website rockinst.org/gun-violence. You can also follow along with the Consortium on Twitter by searching @RockGunResearch. Thanks for listening. I’m Joel Tirado. Until next time.
Alexander Morse 34:05
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