[Federal Register: January 14, 1997 (Volume 62, Number 9)]
[Notices]               
[Page 1902-1911]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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DEPARTMENT OF JUSTICE
Federal Bureau of Investigation

 
Implementation of Section 104 of the Communications Assistance 
for Law Enforcement Act

AGENCY: Federal Bureau of Investigation (FBI).

ACTION: Second Notice and request for comments.
[See First Notice at: http://jya.com/fbi051096.txt]

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SUMMARY: The FBI is providing a second notification of the requirements 
for actual and maximum capacity of communication interceptions, pen 
register and trap and trace device-based interceptions that 
telecommunications carriers may be required to conduct to support law 
enforcement's electronic surveillance needs, as mandated in section 104 
of the Communications Assistance for Law Enforcement Act (CALEA). On 
October 16, 1995, the FBI published an Initial Notice for comment 
(60FR53643); and on November 9, 1995, the comment period was extended 
until January 16, 1996. After reviewing the comments received, the FBI 
is issuing this Second Notice for comment.

DATES: Written comments must be received on or before February 13, 
1997.

ADDRESSES: Comments should be submitted in triplicate to the 
Telecommunications Industry Liaison Unit (TILU), Federal Bureau of 
Investigation, P.O. Box 220450, Chantilly, VA 20153-0450.

FOR FURTHER INFORMATION CONTACT:
Contact TILU at (800) 551-0336. Please refer to your question as a 
capacity notice question. Because the appendices referred to in this 
Notice are voluminous, they are not contained herein but are available 
in a public reading room located at Federal Bureau of Investigation 
Headquarters, 935 Pennsylvania Ave. N.W., Washington, D.C. 20535. To 
review the appendices, interested parties should contact Ms. Eloise Lee 
at FBI Headquarters, telephone number (202) 324-3476, to schedule an 
appointment (48 hours in advance).

I. Background

A. Purpose of CALEA

    On October 25, 1994, President Clinton signed into law the 
Communications Assistance for Law Enforcement Act (CALEA) (Public Law 
103-414, 47 U.S.C. 1001-1010). Its objective is to make clear a 
telecommunications carrier's duty to cooperate in the interception of 
communications for law enforcement purposes. (For purposes of this 
notice, the word ``interception'' refers to the interception of both 
call-content and call-identifying information.) CALEA was enacted to 
preserve law enforcement's ability, pursuant to court order or other 
lawful authorization, to access call-content and call-identifying (pen 
registers and trap and trace) information in an ever-changing 
telecommunications environment.
    In 1968 when Congress statutorily authorized court-ordered 
electronic surveillance, there were no technological limitations on the 
number of interceptions that could be conducted. However, the onset of 
new and advanced technologies has begun to erode the ability of the 
telecommunications industry to support law enforcement's interception 
needs. To preserve communications interception as a vital investigative 
tool, the Congress determined that technological solutions must be 
employed necessitating greater levels of assistance from 
telecommunications carriers.
    The intent of CALEA is to define and clarify the level of technical 
assistance required from telecommunications carriers. CALEA does not 
alter or expand law enforcement's fundamental statutory authority to 
conduct interceptions. It simply seeks to ensure that after law 
enforcement obtains legal authority, telecommunications carriers will 
have the necessary technical ability to fulfill their statutory 
obligation to accommodate requests for assistance.

B. Capacity Notice Mandate

    Because many future interceptions will be fulfilled through 
equipment controlled by telecommunications carriers, CALEA obligates 
the Attorney General to provide carriers with information they will 
need (a) to be capable of accommodating the actual number of 
simultaneous interceptions law enforcement might conduct as of October 
25, 1998, and (b) to size and design their networks to accommodate the 
maximum number of simultaneous interceptions that law enforcement might 
conduct after October 25, 1998. (Although actual and maximum capacity 
determinations represent estimates for October 25, 1998, and 
thereafter, telecommunications carrier compliance with capacity 
requirements is, by terms of CALEA, required by 3 years after issuance 
of the Final Notice.) These two information elements are referred to in 
CALEA as ``actual'' and ``maximum'' capacity requirements. In 
accordance with section 104 of CALEA, the FBI, which has been delegated 
CALEA implementation responsibilities from the Attorney General, must 
provide notice of law enforcement's future actual and maximum capacity 
requirements. The statute defines these requirements as follows:
    For actual capacity: The actual number of communication 
interceptions, pen registers, and trap and trace devices, representing 
a portion of the maximum capacity, that the Attorney General estimates 
that government agencies authorized to conduct electronic surveillance 
may conduct and use simultaneously by the date that is 4 years after 
the date of enactment of CALEA.
    For maximum capacity: The maximum capacity required to accommodate 
all of the communication interceptions, pen registers, and trap and 
trace devices that the Attorney General estimates that government 
agencies authorized to conduct electronic surveillance may conduct and 
use simultaneously after the date that is 4 years after the date of 
enactment of CALEA.
    Although CALEA requires the Attorney General to estimate the actual 
number of communication

[[Page 1903]]

interceptions, pen registers and trap and trace devices that may be 
required simultaneously as of October 25, 1998 and thereafter, the 
estimates are not a reflection of the number of interceptions expected 
to occur. Indeed, law enforcement has no estimate or expectations about 
how many interceptions will occur. The number of interceptions that 
actually occur will be determined by authorized law enforcement 
investigations at the time.
    Under CALEA, telecommunications carriers are required to have an 
actual capacity available for immediate use 3 years after issuance of a 
Final Notice. Maximum capacity, on the other hand, is a capacity level 
that telecommunications carriers must be able to accommodate 
``expeditiously'' if law enforcement's needs increase in the future. 
The time frame for ``expeditious'' expansion to maximum capacity was 
not specified in CALEA. However, law enforcement typically maintains 
ongoing liaison with telecommunications carriers serving their areas. 
Such liaison facilitates the needed technical capability and capacity 
to be prearranged, thereby ensuring that the interception can begin as 
soon as the legal authorization is received. Such liaison is critical 
because electronic surveillance interceptions are by their very nature 
time sensitive. Law enforcement considers five business days from 
receipt of a court order by a telecommunications carrier to be a 
reasonable period of time to allow for incremental expansion up to the 
maximum capacity on an as-needed basis. This time frame is based on the 
time typically involved under existing procedures used by law 
enforcement and telecommunications carriers to make technical 
arrangements.
    The term ``expeditious,'' as used herein, applies to section 104 
capacity requirements regarding incremental expansion up to the maximum 
capacity. It should not be confused with ``expeditious access'' to 
call-content and call-identifying information as used in section 103 of 
CALEA, which pertains to the assistance capability requirements.
    Law enforcement has interpreted the maximum capacity chiefly as a 
requirement that telecommunications carriers will follow to size a 
capacity ceiling. This ceiling is intended to provide 
telecommunications carriers with a stable framework for cost-
effectively designing future capacity into their networks. It also 
would provide room for accommodating future interception-related 
``worst-case scenarios.'' Establishing the maximum capacity will allow 
telecommunications carriers to assist law enforcement during serious, 
unpredictable emergencies requiring unusual levels of interception.
    Consistent with CALEA, this Second Notice identifies the number of 
simultaneous interceptions that a telecommunications carrier should be 
able to accommodate in a given geographic area as of the date that is 
three years after the date of the Final Notice of Capacity and 
thereafter. An interception relates to accessing and delivering all 
communications (call-content) and/or call-identifying information 
associated with the telecommunications service of the subject specified 
in a court order or lawful authorization. The telecommunications 
service targeted for interception includes all of the services and 
features associated with the subject's wireline/wireless telephone 
number, or as otherwise specified in the court order or lawful 
authorization.
    For a call content-based interception, a carrier is responsible for 
accessing and delivering all communications and call-identifying 
information supported by the subject's telecommunications service, 
regardless of the advanced services or features to which the subject 
subscribes (e.g., a redirected call through call forwarding); and 
notwithstanding that the subject may be engaged in more than one 
communication (e.g., a subject is engaged in a voice telephone call and 
simultaneously sends a fax or data transmission; a subject is engaged 
with several (different) parties in a conference call and 
simultaneously communicates with a non-conferenced party).
    For an interception of call-identifying information, a carrier is 
responsible for accessing and delivering all call-identifying 
information related to the communications caused to be generated or 
received by the subject, regardless of the advanced services or 
features to which the subject subscribes and notwithstanding that the 
subject may be engaged in more than one simultaneous communication. The 
fact that a subject utilizes advanced services and features as part of 
his/her telecommunications service or is capable of sending or 
receiving more than one communication simultaneous does not mean that 
carrier access and delivery of each constitutes a separate 
interception. Consequently, telecommunications carriers need to ensure 
that, regardless of their solutions (which may be varied), the solution 
permits access and delivery of all the communications and call-
identifying information for each interception. Because of this 
circumstance, and because CALEA forbids the government from dictating 
solutions, law enforcement will be available to consult with carriers 
as they develop solutions and apply the capacity requirements to their 
particular solutions.
    In some instances a telecommunications carrier may be able to meet 
the assistance capability requirements without modifying its equipment, 
facilities, or services. As a practical matter, conventional methods of 
effectuating interceptions of call-content and call-identifying 
information, such as loop extender technologies, may meet the 
requirements of CALEA for some subjects of court-ordered interceptions, 
depending on the types of services and features, etc., to which the 
subject subscribes. Telecommunications carriers that presently meet 
these requirements under the circumstances described above will be in 
compliance until the equipment, facility, or service is replaced or 
significantly upgraded or otherwise undergoes major modification. 
Furthermore, telecommunications carriers that cannot meet the 
assistance capability requirements may still be considered to be in 
compliance if the Government does not provide cost recovery for 
modifications to equipment, facilities, and services installed or 
deployed on or before January 1, 1995. Such carriers will also be in 
compliance with CALEA until such time as they significantly upgrade or 
replace or otherwise undergo major modification to equipment, 
facilities, or services.

C. Initial Notice of Capacity

    On October 16, 1995, law enforcement's proposed future actual and 
maximum capacity requirements were presented in an Initial Notice 
published in the Federal Register as mandated by section 104 of CALEA. 
Comments on the Initial Notice were accepted through January 16, 1996. 
The Initial Notice and the comments on it are summarized in section V 
of this notice.

D. Second Notice of Capacity

    Since the release of the Initial Notice, law enforcement has 
consulted with telecommunications industry representatives, privacy 
advocates, and other interested parties to receive feedback on the 
method used to express future actual and maximum capacity requirements. 
This consultative process has helped law enforcement understand the 
challenges facing the industry and others in appling the capacity 
requirements. After deliberation, law enforcement concluded that it 
should

[[Page 1904]]

issue a Second Notice for comment in order to refine its original 
approach.
    After the instant comment period closes, a complete record will be 
delineated and a Final Notice will be issued that fulfills the 
obligations of the Attorney General under section 104(a)(1) of CALEA. 
Telecommunications carriers will have 180 days after publication of the 
Final Notice in the Federal Register to submit a Carrier Statement as 
mandated by section 104(d) to the Government identifying any of its 
systems or services that do not have the capacity to accommodate law 
enforcement's requirements (see section IV infra).
    CALEA applies to all telecommunications carriers as defined in 
section 102(8). Notices will eventually be issued covering all 
telecommunications carriers. However, this Second Notice and its 
associated Final Notice should be viewed as a first phase applicable to 
telecommunications carriers offering services that are of most 
immediate concern to law enforcement--that is, those telecommunications 
carriers offering local exchange services and certain commercial mobile 
radio services, specifically cellular service and personal 
communications service (PCS). (For the purpose of this notice, PCS is 
considered a service operating in the licensed portion of the 2 GHz 
band of the electromagnetic spectrum, from 1850 MHZ to 1990 MHZ. 
Telecommunications carriers offering local exchange services are 
referred to hereafter in this notice as ``wireline'' carriers, and 
telecommunications carriers offering cellular and PCS services are 
referred to as ``wireless'' carriers.
    The exclusion from this notice of certain other telecommunications 
carriers that have services deployed currently or anticipate deploying 
services in the near term does not exempt them from any obligations 
under CALEA. Law enforcement will consult with these other 
telecommunications carriers before subsequent Notices are issued and 
applicable capacity requirements are established. Law enforcement also 
looks forward to consulting with these other telecommunications 
carriers to develop a reasonable method for characterizing capacity 
requirements.

II. Methodology for Projecting Capacity Requirements

A. Overview

    The CALEA mandate set forth in section 104 obligates the Attorney 
General to estimate future interception capacity requirements and marks 
the first time that (a) information has been required to be provided to 
telecommunications carriers in order for them to design future networks 
with reference to the amount of potential future interception activity 
that may occur, and (b) the entire law enforcement community has been 
required to project its collective future potential needs for 
interception. This new circumstance has generated legitimate concern in 
the law enforcement community, because telephone technology 
historically placed no constraints on the number of court-ordered 
interceptions that could be effected. If not implemented carefully, an 
under-scoping of capacity requirements under CALEA could have the 
unintended effect of restricting the technical ability to conduct 
interceptions authorized in court orders. If future interception needs 
are understated, law enforcement's investigative abilities will be 
hampered and, more important, public safety will be jeopardized.
    Capacity provisions were included in CALEA to ensure that law 
enforcement's future interception needs can be met in a way that will 
not be unduly burdensome for telecommunications carriers. These 
provisions also present a means for telecommunications carriers to 
better understand the nature and extent of their existing statutory 
obligations to accommodate law enforcement's interception needs. (Since 
law enforcement requirements for all types of interceptions are a 
function of authorized investigations, the estimated number that may be 
conducted cannot be zero since that would imply that there is a county 
or market service area where an interception could not be conducted. 
See section G ``Establishing Threshold Capacity Requirements'' for 
further discussion on how minimum capacities are estimated.) To derive 
capacity requirements that would meet law enforcement's future 
interception needs without being unduly burdensome, law enforcement 
used a rigorous methodology. The objective was to ensure that law 
enforcement's future capacity requirements would (a) be based on 
historical interception activity, (b) ensure that public safety is not 
compromised, (c) provide telecommunications carriers with a degree of 
certainty regarding law enforcement's needs over a reasonable period of 
time, (d) be based on the geographic areas affected, and (e) not 
dictate a solution to the industry.
    The methodology consisted of these steps:
    <bullet> Collecting information on historical interception 
activity.
    <bullet> Determining geographic areas for identifying capacity 
requirements.
    <bullet> Deriving a basis for determining capacity requirements for 
wireline carriers.
    <bullet> Deriving a basis for determining capacity requirements for 
wireless carriers.
    <bullet> Deriving growth factors for projecting future capacity 
requirements from historical information.
    <bullet> Establishing threshold capacity requirements.

B. Collecting Information on Historical Interception Activity

    To comply with CALEA's mandate to project future capacity needs, 
law enforcement believed it was essential to first establish a 
historical baseline of interception activity from which future 
interception needs could be projected. This effort entailed a detailed 
review and analysis of the available information on recent federal, 
state, and local law enforcement interceptions throughout the United 
States. Such information had never before been collected in a single 
repository. Amassing this detailed and extremely sensitive information 
required an unprecedented and time-consuming effort. It involved 
identifying sources from which accurate information could be retrieved 
efficiently. The information required included the numbers of all types 
of interceptions (communications, pen register, and trap and trace) 
performed by federal, state, and local law enforcement agencies, in 
terms of the actual number of telephone lines intercepted at each 
locality. (For purposes of this notice, the work ``line'' refers to the 
transmission path from a subscriber's terminal to the network via a 
wireline or wireless medium.)
    The Wiretap Report, published annually by the Administrative Office 
of the United States Courts, was a valuable source of historical 
information on criminal Title III (call-content) court orders; however, 
it did not identify the actual number of interception lines associated 
with each court order or, more important, the vastly greater number of 
lines associated with call-identifying interceptions (pen register and 
trap and trace) that have been performed by all law enforcement 
agencies. Even though law enforcement used information on the number of 
court orders reported in the Wiretap Report for forecasting purposes as 
described subsequently in this section, the report does not contain the 
necessary line-related information needed to identify the level of past

[[Page 1905]]

interceptions for establishing a historical baseline of activity.
    To obtain line-related information regarding past simultaneous 
interceptions, records of interception activity were acquired from 
telecommunications carriers, law enforcement officials, and what was 
most important, from the federal and state Clerks of Court offices (the 
official repositories for all interception court orders) through a 
survey.
    The objective of the survey effort was to determine the numbers of 
all types of interceptions (communications, pen register, and trap and 
trace) conducted between January 1, 1993, and March 1, 1995, for all 
geographic areas. Highly sensitive information pertaining to each 
interception was collected, including interception start/end dates and 
area code and exchange. The time period of January 1, 1993 to March 1, 
1995 was chosen to obtain recent interception information that was 
reasonably retrievable given the time constraint imposed by CALEA with 
regard to publishing a Notice of Capacity.
    Approximately 1,500 telecommunications carriers, representing 
nearly all wireline and cellular telephone companies (as of March 
1995), were requested to provide information that would identify where 
and how many interceptions had occurred within their networks during 
the period surveyed. Records were submitted by approximately 66 percent 
of the telecommunications carriers surveyed. To ensure receipt of 
information from a comprehensive representation of the 
telecommunications industry, law enforcement worked closely with 
telecommunications carriers serving large markets or unique geographic 
areas. Such carriers included the Regional Bell Operating Companies 
(RBOCs), GTE, and the largest providers of cellular service.
    Sensitive interception records maintained under seal within the 
Clerks of Court offices were acquired through two separate efforts. 
Federal court order information was collected under special court 
orders directing the unsealing of this information for the limited 
purpose of issuing capacity notices required under section 104 of 
CALEA. State and local law enforcement records were collected with the 
assistance of the offices of the State Attorney Generals and District 
Attorneys or state wide prosecutors. This effort resulted in the 
collection of information on all federal law enforcement interception 
activity for the period surveyed and information on interceptions by 
state and local law enforcement from most states. (Some states' laws do 
not authorize the conduct of all types of interceptions, e.g., call-
conduct interceptions, and other states do not maintain retrievable 
records of all historical interception activity.)

C. Determining Geographic Areas for Identifying Capacity Requirements

    Section 104(a)(2)(B) of CALEA requires law enforcement to identify, 
to the maximum extent practicable, the capacity needed at ``specific 
geographic locations.'' In addressing this mandate, law enforcement 
decided that using point-specific sites, such as switch locations, city 
blocks, or neighborhoods, would not be appropriate because it would not 
properly take into account movement in criminal activity and could lead 
to the compromise of sensitive investigations. Also, law enforcement 
believed that any geographic designation used should not be subject to 
frequent change, should relate to discernible and officially recognized 
geographic territorial boundaries, and should be commonly understood by 
the affected parties.
    It was also considered essential that the geographic designations 
be ones that (a) historically have not been affected by regulatory 
changes in the telecommunications marketplace, (b) would allow 
flexibility for telecommunications carriers in developing solutions, 
and (c) would not be affected by changes in the configurations of 
telecommunications networks.
    Law enforcement concluded that, for wireline carriers, county 
boundaries or their equivalent best met the criteria above and should 
be used to define the geographic locations for projecting future 
capacity requirements. (For purposes of this notice, the term 
``county'' includes boroughs and parishes, as well as the District of 
Columbia and a few independent cities in Missouri, Maryland, Nevada, 
and Virginia that are not part of any county. U.S. territories such as 
American Samoa, Guam, the Mariana Islands, Puerto Rico, and the U.S. 
Virgin Islands are treated similarly.) Further, using the geographic 
designation of a county in this way was deemed appropriate because it 
is used by both telecommunications carriers and law enforcement. 
Telecommunications carriers pay county taxes and fees and are affected 
by county regulations. Likewise, law enforcement's legal territorial 
jurisdictions frequently are drawn based on county boundaries, and 
resources for law enforcement are often allocated on a county basis.
    For wireless carriers, individual county boundaries were not 
considered to be a feasible geographic designation for identifying 
capacity requirements. Instead, law enforcement determined that 
wireless market service areas--Metropolitan Statistical Areas (MSAs), 
Rural Service Areas (RSAs), Major Trading Areas (MTAs), and Basic 
Trading Areas (BTAs)--would be the most appropriate geographic 
designations. Although wireless market service areas comprise sets of 
counties, the use of such market service areas best takes into account 
the greater inherent mobility of wireless subscribers. Furthermore, 
what is most important is that historical information on wireless 
interceptions could only be associated with market service areas.
    The approach selected--using counties for wireline carriers and 
market service areas for wireless carriers--was also responsive to 
comments on the Initial Notice urging that the two types of 
telecommunications carriers be treated separately; thus, different 
geographic designations should appropriately apply.

D. Deriving a Basis for Determining Capacity Requirements for Wireline 
Carriers

    Having established the county as the appropriate geographic area 
for identifying capacity requirements for wireline carriers, law 
enforcement had to decide on a basis for determining capacity 
requirements for each county. Section 104(a)(2)(A) of CALEA stated that 
the capacity requirements could be based on type of equipment, type of 
service, number of subscribers, type or size of carrier, or nature of 
service area, but allowed the use of ``any other measure.'' Law 
enforcement chose to use the historical interception activity 
associated with telecommunications equipment located within a county as 
the most logical basis for making determinations about projected 
capacity requirements in a county.
    Each wireline interception reported during the historical period 
surveyed (January 1, 1993, to March 1, 1995) was associated with a 
telecommunications switch, based on its area code and exchange 
(frequently referred to as its ``NPA/NXX code'') as found in the April 
1995 version of the Local Exchange Routing Guide (LERG) published by 
Bellcore. The LERG contains information on the switching systems and 
exchanges of wireline carriers and is considered to be an authoritative 
source in the telecommunications industry. Thereafter, 
telecommunications switches were

[[Page 1906]]

associated to counties by using the vertical and horizontal coordinates 
marking the switch's physical location.
    CALEA also required that capacity requirements be expressed in 
terms of ``simultaneous'' interceptions. Law enforcement chose to 
consider interceptions occurring on the same day, rather than at 
exactly the same moment, as being simultaneous. This time frame was 
logical from a law enforcement perspective, because interception court 
orders are authorized for a certain number of days as opposed to some 
other unit of time Additionally, the time frame of 1 day was compatible 
with the historical data that was recorded only by days.
    The daily interception activity of each switch in a county was 
examined, and the single day with the most interceptions during the 
period surveyed was used to identify the switch's highest number of 
simultaneous interceptions. Thereafter, the highest number of 
simultaneous interceptions identified for each switch in the country 
was totaled to produce a historical baseline for the county. Law 
enforcement believed that this approach provided a reasonable 
representation of past interception needs for the geographic area 
during the period surveyed. This approach also avoided the problems 
that would be inherent in trying to specify capacity requirements for 
interceptions on a site-specific or equipment-specific basis because of 
the fluid nature of interceptions conducted over time and because of 
changes in equipment and the services that they support. After 
determining the county's historical baseline, law enforcement sought to 
establish an appropriate means of utilizing that activity as a basis 
for projecting future capacity requirements. In the Initial Notice, 
capacity requirements were expressed as a percentage of the engineered 
capacity of equipment, facilities, and services. It was thought that in 
so doing, some flexibility would be beneficial to carriers in 
addressing the capacity requirements. Comments on the Initial Notice, 
however, questioned the meaning of engineered capacity and recommended 
that capacity requirements be expressed as fixed numbers rather than as 
percentages. In response, law enforcement re-examined this issue and 
found that using fixed numbers for each county would be a clear way to 
express capacity requirements without tying them to the constantly 
changing components of the telecommunications network.

E. Deriving a Basis for Determining Capacity Requirements for Wireless 
Carriers

    Having established the market service area as the appropriate 
geographic area for identifying future capacity requirements for 
wireless carriers, law enforcement had to decide on a basis for 
determining capacity requirements for each market. Each cellular 
interception reported during the period surveyed (January 1, 1993 to 
March 1, 1995) was associated with a cellular market service area using 
the August 1995 version of the Cibernet database, which contains 
information on roaming and billing arrangements for cellular networks 
and is considered to be an authoritative source in the 
telecommunications industry. Thereafter, the single day with the most 
interceptions during the period surveyed was identified and used to 
establish the historical baseline for the market service area.
    Due to the similarities between cellular and PCS, law enforcement 
used the historical interception activity of cellular carriers to 
develop projections of future capacity requirements for PCS carriers. 
Cellular markets are defined by MSAs and RSAs, and PCS markets are 
defined by MTAs and BTAs. Historical cellular interception activity was 
mapped to a PCS market service area. Again, the single day with the 
most interceptions during the period surveyed was identified and used 
to ascribe to it a historical baseline for the market service area.
    To be responsive to comments on the Initial Notice objecting to the 
use of percentages of engineered capacity, law enforcement found that 
using numbers rather than percentages was also an appropriate means by 
which to express capacity requirements for wireless carriers.

F. Deriving Growth Factors for Projecting Future Capacity Requirements 
From Historical Information

    Section 104 of CALEA requires the Attorney General to project 
future requirements for actual and maximum capacity. As discussed 
previously in this notice, law enforcement derived a baseline for these 
estimates from the historical interception activity in geographic areas 
defined as counties for wireline carriers and market service areas for 
wireless carriers during the period surveyed. To project future 
capacity requirements, growth factors were developed and applied to the 
historical information.
    As noted, comments on the Initial Notice recommended that capacity 
requirements be stated separately for wireline and wireless carriers. 
In response, law enforcement created new formulas based on a revised 
set of growth factors that took account of this distinction.
1. Formulas
    As discussed below, four growth factors are used in this Second 
Notice in formulating future capacity requirements: A<INF>wireline, 
A<INF>wireless, M<INF>wireline, and M<INF>wireless. The ``A'' factors 
were applied to historical interception activity to estimate future 
actual capacity requirements as of October 1998, the ``M'' factors were 
used to estimate future maximum capacity requirements.
    The formulas are as follows:
    Wireline: Future Actual Capacity Requirement in a County Equals The 
Historical Interception Activity in the County Multiplied by 
A<INF>wireline.
    Future Maximum Capacity Requirement in a County Equals The Future 
Actual Capacity Requirement in the County Multiplied by M<INF>wireline.
    Wireless: Future Actual Capacity Requirement in a Market Service 
Area Equals The Historical Interception Activity in the Market Service 
Area Multiplied by A<INF>wireless.
    Future Maximum Capacity Requirement in a Market Service Area Equals 
The Future Actual Capacity Requirement in the Market Service Area 
Multiplied by M<INF>wireless.
    All the resulting requirements for future actual and maximum 
capacity were rounded up to the next whole number.
2. Growth Factors
    The growth factors used herein were derived solely from analysis 
related to the historical interception information. Three sources of 
historical information were deemed to provide relevant information to 
be considered as growth factors: (a) the number of court orders for 
call-content interceptions which was obtained from the Wiretap Reports 
published by the Administrative Office of United States Courts for the 
time period 1980 through 1995; (b) the number of court orders for call-
identifying information from pen register and trap and trace devices, 
which was obtained from reports published by the Department of Justice 
documenting pen register and trap and trace usage by DOJ agencies for 
the time period 1987 through 1995; and (c) the historical baseline 
number of call-content interceptions and interceptions of call-
identifying information, which was obtained from the survey of law 
enforcement and industry for the time

[[Page 1907]]

period January 1, 1993 through March 1, 1995.
    To project the future numerical level of court orders, statistical 
and analytical methods were applied to the historical interception 
information. It should be understood that the projections for the 
number of potential future court orders do not mean that they are the 
numbers of orders that law enforcement will in fact perform in these 
years or intends to perform. Rather, they are part of a statistical 
method used to derive growth factors that would be useful ultimately in 
calculating future actual and maximum capacity requirements.
    A commonly-used analytical tool for projections, known as Best-Fit-
Line analysis, was used to track the number of court orders over time 
and then to project the number into the future. As discussed below, 
projections were made for call-content court orders for wireline and 
wireless for the year 1998 and the year 2004. The projections were also 
made for the vastly greater number of pen register and trap and trace 
court orders for wireline and wireless for the year 1998 and the year 
2004. Composite growth figures for wireline and wireless interceptions 
were then calculated by weighting the court order projections by the 
relative number of call-content interceptions and interceptions of 
call-identifying information during the period survey. The resulting 
A<INF>wireline and A<INF>wireless growth factors were based on the 1998 
projections. The M<INF>wireline and M <INF>wireless growth factors were 
based on the 2004 projections. The year 1998 was selected to comply 
with the statutory language of CALEA requiring law enforcement to 
estimate actual capacity requirements by that time. The year 2004 was 
selected because it provided a 10 year period after the passage of 
CALEA, a period that was considered reasonable for projecting maximum 
capacity requirements. It was also considered to be a rational period 
for constituting a stable capacity ceiling and a design guide.
    The value derived for A<INF>wireline is 1.259; the value derived 
for A<INF>wireless is 1.707; the value derived for M<INF>wireline is 
1.303; and the value derived for M<INF>wireless is 1.621. These growth 
factors can also be translated into, and understood in terms of, annual 
growth rates for capacity requirements. For wireline, if computed 
annually, growth rates are 5.92 percent for the period from 1994 
through 1998, and 4.55 percent for the period from 1998 through 2004. 
For wireless, if computed annually, growth rates are 14.30 percent and 
8.38 percent respectively, for the same time periods. Of relevance in 
determining the differences in growth rates are the expectations of 
overall business growth for wireline and wireless telephone services. 
Market projections for wireline show a steady rate of 3.5 percent 
annual increase, while wireless annual growth is projected to be 12.0 
percent during each of the next 10 years.

(For more information on how the growth factors were derived, refer to 
Appendix E which is available in the FBI's reading room.)

G. Establishing Threshold Capacity Requirements

    In its review of historical interception activity, law enforcement 
recognized that numerous counties and market service areas had no 
interception activity during the time period surveyed. Under the 
methodology described above, these counties and market service areas 
would have future actual and maximum capacity requirements equal to 
zero. However, the establishment of future capacity requirements of 
zero would not provide even a minimal growth flexibility and would 
largely undermine the intent of CALEA, which is to preserve law 
enforcement's ability to conduct some level of interceptions. 
Additionally, it is possible that law enforcement may have conducted 
interceptions in some of these areas before or after the period 
surveyed, and it may well have to do so again. History has shown that 
criminal activity or exigent circumstances can occur anywhere. 
Therefore, law enforcement must be capable of conducting a number of 
interceptions in all areas. Consequently, threshold future capacity 
requirements were developed for counties and market service areas that 
otherwise would have had a capacity requirement of zero under the above 
methodology.
    For wireline telephone service offered in counties, law enforcement 
examined the distribution of historical interception activity and found 
that many counties had no interceptions, and many others had only one 
interception. To avoid having counties with no future capacity 
requirement, law enforcement decided to treat counties with zero 
historical interceptions as if they had one interception. Hence, when 
the growth factors were applied, it produced a future actual capacity 
requirement of two simultaneous interceptions and a future maximum 
capacity requirement of three simultaneous interceptions.
    For the wireless market service areas, law enforcement took a 
similar approach. Here, too, it found that many market service areas 
had no interceptions during the time period surveyed. Law enforcement 
chose to treat these market service areas as if they had one 
interception. Hence, when the growth factors for wireless carriers were 
applied to these market service areas, the result was a future actual 
capacity requirement of two simultaneous interceptions and a future 
maximum capacity requirement of four simultaneous interceptions.

III. Statement of Capacity Requirements

A. Capacity Requirements for Wireline Carriers

    Law enforcement is providing notice for the estimated number of 
communication interceptions, pen register and trap and trace device-
based interceptions that may be conducted simultaneously in a given 
geographic area and has selected counties as the appropriate geographic 
basis for expressing capacity requirements for telecommunications 
carriers offering local exchange service (ie., wireline carriers). 
Appendix A lists all actual and maximum estimates by county. (Appendix 
A is available in the FBI's reading room for review.) These estimates 
represent the number of simultaneous call-content interceptions and 
interceptions of call-identifying information for each county in the 
United States and its territories. Wireline carriers may ascertain the 
actual and maximum estimates that will affect them by looking up in 
Appendix A the county (or counties) for which they offer local exchange 
service. Capacity requirements based on final estimates will remain in 
effect for all telecommunications carriers providing wireline service 
to these areas until such time as the Attorney General publishes a 
notice of any necessary increase in maximum capacity pursuant to 
section 104(c) of CALEA.
    County capacity requirements represent the estimated number of all 
types of interceptions that may be conducted simultaneously anywhere 
within the county. When effective, the county capacity requirements 
apply to all existing and any future wireline carriers offering local 
exchange service in each county, regardless of the type of equipment 
used or the customer base. Law enforcement recognizes that some 
carriers may seek further clarification on applying the county capacity 
requirements based on the configurations of their networks and their 
recommended solutions. Section 103(b) of CALEA forbids law enforcement 
from requiring any specific design of equipment, facilities, services, 
features or systems. Because individual carriers configure their 
networks differently, and may pursue different

[[Page 1908]]

solutions, the Telecommunications Industry Liaison Unit of the FBI will 
be available to discuss the application of these capacity requirements 
to a specific telecommunications carrier's network upon request.

B. Capacity Requirements for Wireless Carriers

    Law enforcement is providing notice for the estimated number of 
communication interceptions, pen register and trap and trace device-
based interceptions that may be conducted simultaneously in a given 
geographic area and has selected market service areas-- MSAs, RSAs, 
MTAs, and BTAs--as the appropriate geographic basis for expressing 
actual and maximum capacity requirements for telecommunications 
carriers offering wireless services, specifically those providing 
cellular and PCS service (i.e., wireless carriers). Appendix B lists 
all actual and maximum estimates for MSAs and RSAs; Appendix C lists 
all actual and maximum estimates for MTAs; and Appendix D lists all the 
actual and maximum estimates BTAs. (Appendices B, C, D are available in 
the FBI's reading room for review.) These estimates represent the 
number of simultaneous call-content interceptions and interceptions of 
call-identifying information for each market service area. Capacity 
requirements based on final estimates will remain in effect for all 
wireless carriers providing service to these areas until such time as 
the Attorney General publishes a notice of any necessary increases in 
maximum capacity pursuant to section 104(c) of CALEA.
    In all cases, the statement of interception capacity for a wireless 
market service area reflects law enforcement's estimated number of 
interceptions that may be conducted simultaneously anywhere in the 
service area. Law enforcement must be capable of conducting 
interceptions at any time, regardless of the location of a subject's 
mobile telephone device within the service area. When effective, the 
market service area capacity requirements apply to all existing and any 
future telecommunications carrier offering wireless service in each 
market. Law enforcement recognizes that some carriers may seek further 
clarification about how to apply the market service area requirements 
based on the configurations of their networks. Section 103(b) of CALEA 
forbids law enforcement from requiring any specific design of 
equipment, facilities, services, features or systems. Because 
individual carriers configure their networks differently, and may 
pursue different solutions, the Telecommunications Industry Liaison 
Unit of the FBI will be available to discuss the application of these 
capacity requirements to a specific telecommunications carrier's 
network upon request.

IV. Related Issues

A. Carrier Statement

    Section 104(d) of CALEA requires that within 180 days after the 
publication of a Final Notice pursuant to subsections 104(a) or 104(c), 
a telecommunications carrier shall submit a statement identifying any 
of its systems or services that do not have the capacity to accommodate 
simultaneously the number of call-content interceptions and 
interceptions of call-identifying information set forth in the notice. 
The information in the Carrier Statement will be used, in conjunction 
with law enforcement priorities and other factors, to determine the 
telecommunications carrier that may be eligible for cost reimbursement 
according to section 104.
    A Telecommunications Carrier Statement Template has been developed 
with the assistance of the telecommunications industry to facilitate 
submission of the Carrier Statement. The template is not mandatory, but 
law enforcement encourages industry to use the template when 
identifying any of its systems or services that do not have the 
capacity to accommodate simultaneously the number of call-content 
interceptions and interceptions of call-identifying information set 
forth in the Final Notice. A diskette containing the template will be 
provided by TILU on request by telecommunications carriers.
    The information to be solicited will include the following: Common 
Language Location Identifier (CLLI) code or equivalent identifier, 
switch model or other system or service type, and the city and state 
where the system or service is located. Unique information required for 
wireline systems and services will include the host CLLI code if the 
system or service is a remote, and the county or counties served by the 
system or service. Unique information required for wireless systems and 
services will include the MSA or RSA market service area number(s), or 
the MTA or BTA market trading area number(s) served by the system or 
service.
    The confidentiality of the data received from the 
telecommunications carriers will be protected by the appropriate 
statute, regulation, or nondisclosure agreements.
    After reviewing the Carrier Statements, the Attorney General may, 
subject to the availability of appropriations, agree to reimburse a 
carrier for costs directly associated with modifications to attain 
capacity requirements in accordance with the final rules on cost 
recovery. Decisions to enter into cost reimbursement agreements will be 
based on law enforcement prioritization factors.
    On April 10, 1996, the Carrier Statement Notice was published in 
the Federal Register for comment under the Paperwork Reduction Act 
(PRA). A sixty day comment period ensued ending on June 10, 1996. The 
Carrier Statement Notice is subject to the approval of the Office of 
Management and Budget (OMB) under the auspices of the PRA. A Second 
Carrier Statement Notice for comment is currently being prepared for 
publication in the Federal Register. This comment period will consist 
of thirty days. At the conclusion of the comment period, OMB will issue 
a clearance number which will be published in the Final Notice of 
Capacity.

B. Cost Recovery Rules

    CALEA authorizes the appropriation of $500 million for FY 1995 
through FY 1998 for reimbursing telecommunications carriers for certain 
reasonable costs directly associated with achieving CALEA compliance. 
Section 109(e) directs the Attorney General to establish regulations, 
after notice and comment, for determining such reasonable costs and 
establishing the procedures whereby telecommunications carriers may 
seek reimbursement. In accordance with the section 109(e) mandate, the 
proposed rule was published in the Federal Register, 61 FR 21396, on 
May 10, 1996.
    As authorized by section 109, and on execution of a cooperative 
agreement, it was proposed that a telecommunications carrier be 
reimbursed for the following: (1) All reasonable plant costs directly 
associated with the modifications performed by the carrier in 
connection with equipment, facilities, and services installed or 
deployed on or before January 1, 1995, in order to comply with section 
103; (2) additional reasonable plant costs directly associated with 
making the requirements in section 103 reasonably achievable with 
respect to equipment, facilities, or services installed or deployed 
after January 1, 1995; and (3) reasonable plant costs directly 
associated with modifications of any telecommunications carriers' 
systems or services, as identified in the Carrier Statement, that do 
not have the capacity to accommodate simultaneously the number of call-

[[Page 1909]]

content interceptions and interceptions of call-identifying information 
set forth in the Final Notice(s).

V. The Initial Notice of Capacity

A. Statement of Capacity Requirements in the Initial Notice

    The capacity requirements presented in the Initial Notice were 
expressed as percentages of engineered capacity and were reported by 
category of historical interception activity levels, with each 
geographic area being assigned to one of three categories: I, II, and 
III.
    Category I included the few densely populated areas that 
historically have had high levels of interception activity. Category II 
included other densely populated areas and some suburban areas where 
interception activity had been moderate. Category III covered all other 
geographic areas. All telecommunications carriers would have been 
required to meet the minimum requirements established for Category III. 
In addition, they were to be notified of those geographic areas within 
the areas they serve that fall in Categories I or II.
    The percentages of engineered capacity applied to the equipment, 
facilities, and services that provide a customer or subscriber with the 
ability to originate, terminate, or direct communications. The purpose 
of using percentages was to account for the dynamic nature and 
diversity of the telecommunications industry.
    This approach yielded the following projections of actual and 
maximum capacity requirements: for Category I, 0.5 percent for actual, 
1 percent for maximum; for Category II, 0.25 percent for actual, 0.5 
percent for maximum; for Category III, 0.05 percent for actual, 0.25 
percent for maximum.

B. Discussion of Comments on the Initial Notice of Capacity

    On October 16, 1995, law enforcement's proposed future actual and 
maximum capacity requirements were presented in an Initial Notice 
published in the Federal Register as mandated by section 104 of CALEA. 
Comments on the Initial Notice were accepted through January 16, 1996. 
Fifty-one parties consisting of individuals, companies, and industry 
associations submitted comments. The following issues were identified 
from the comments received in response to the Initial Notice of 
Capacity.
1. The Use of Percentages in Lieu of Fixed Numbers
    In the Initial Notice, capacity requirements were expressed as 
percentages of engineered capacity. Twenty-one comments were received 
on the use of percentages in lieu of fixed numbers. Eighteen of the 
comments indicated that law enforcement should use specific numbers 
instead of percentages for expressing its actual and maximum capacity 
needs and the percentages should be translated into specific numbers 
for each area, or for each switch before a Final Notice is issued. Two 
of the comments noted that supplying actual capacity figures would not 
require disclosure of sensitive information to the public. One comment 
stated that percentages would unnecessarily complicate the 
implementation and enforcement of CALEA. One comment stated that 
percentages do not meet the intent of CALEA.
    After consideration of the aforementioned comments, law enforcement 
has concluded that capacity requirements for wireline and wirless 
carriers will be expressed as fixed numbers rather than as percentages.
2. Engineered Capacity
    Twenty comments were received on law enforcement's expression of 
actual and maximum capacity requirements as a percentage of the 
``engineered capacity'' of the equipment, facilities, or services that 
provide a customer or subscriber with the ability to originate, 
terminate, or direct communications. Ten of the comments stated that 
the definition of engineered capacity was too vague and needed to be 
clarified. Six of the comments stated that engineered capacity applied 
to land line facilities only and needed to be clarified for wireless 
carriers. Two of the comments supported the use of ``installed lines'' 
as the measure of capacity. One comment preferred the use of voice 
channels as a measurement of engineered capacity for wireless systems. 
One comment stated that the definition of engineered capacity must be 
tailored to each industry segment.
    In response to the aforementioned comments and from comments on the 
issue of percentages, law enforcement chose to use fixed numbers as the 
expression of its capacity needs and thus, the use of terms such as 
``engineered capacity'' no longer have any relevance.
3. Geographic Categories
    In the Initial Notice, capacity requirements were stated by 
category of historical interception levels with each geographic area 
being assigned to one of three categories: I, II, or III. Nineteen 
comments were received on enforcement's use of geographic 
categorization to state its capacity requirements. Nine of the comments 
stated that the notice did not indicate which geographic areas fell 
into a particular category and that further clarification was needed on 
the basis for determining categories. One of the comments noted that 
geographic designations were irrelevant in a wireless environment. Four 
of the comments remarked that counties did not necessarily correspond 
to a particular switch service area. One comment stated that geographic 
areas should be clearly defined and reasonably small. One comment 
requested clarification on determining capacity when geographic areas 
overlapped categories. Three comments stated that rural and remote 
areas should be classified as having Category III (lowest level) 
requirements.
    Law enforcement considered the comments and has concluded that it 
will no longer use categories for stating capacity requirements. 
Instead, specific geographic locations to include counties for wireline 
carriers and market service areas for wireless carriers will be used 
for stating capacity requirements.
4. The Issuance of Separate Capacity Requirements to the Wireless 
Industry
    Four comments were received on the application of the capacity 
requirements to the wireless industry. Two of the comments recommended 
that the wireline and wireless industry segments be treated separately 
for the purpose of issuing capacity requirements. For example, it was 
suggested that the geographic divisions proposed in the Initial Notice 
were based on a wireline central office architecture, which was 
inappropriate given the network structures for wireless carriers. 
Furthermore, two of the comments requested clarification as to how 
wireless carriers were expected to calculate capacity for their 
systems.
    After consideration of the comments, law enforcement has concluded 
that separate capacity requirements will be established for wireless 
carriers.
5. Capacity Requirements in Areas With No Interception History
    Three comments were received requesting that the notice address 
areas that lacked interception history. One comment stated that if 
there was no prior interception history, the capacity number should be 
zero while another comment suggested that a fourth category should be 
created for areas with sparse populations. One comment requested that 
law enforcement clarify whether areas with no interception

[[Page 1910]]

history should be required to provide capability without specific 
capacity.
    In its review of historical interception activity, law enforcement 
recognized that numerous geographic areas had not conducted 
interceptions during the time period surveyed, January 1, 1993 to March 
1, 1995. However, law enforcement also recognized that interceptions 
may have occurred in these geographic areas before or after the time 
period surveyed and may well occur again in the future. Because history 
has shown that criminal activity and exigent circumstances can occur 
anywhere at any time, it is essential that the ability to conduct some 
level of interception exists in all geographic areas. Therefore, 
minimum capacity requirements were established for those areas that did 
not exhibit interception activity during the period surveyed.
6. Application of Capacity Requirements to Other Technologies
    Nine comments were received on the application of the capacity 
requirements to other services, such as mobile satellite, Cellular 
Digital Packet Data (CDPD), Electronic Messaging, and Special Mobile 
Radio (SMR) systems. Four of the comments noted that the Initial Notice 
of Capacity lacked any discussion of data services and advanced 
services, such as CDPD, and that further clarification was needed on 
how to calculate capacity requirements for such services. One comment 
stated that the Initial Notice was too general to measure the potential 
impact on mobile satellite services. Four of the comments requested 
clarification as to how the capacity requirements would apply to SMR 
carriers in the manner specified.
    In response to the aforementioned comments, law enforcement is 
issuing a Notice of Capacity applicable to carriers that offer services 
of the most immediate concern; those carriers offering local exchange 
services and certain commercial mobile radio services, specifically 
cellular and PCS services. Before issuing Notices applicable to 
carriers other than these, law enforcement will consult with such 
carriers in order to assess whether the expression of capacity 
requirements herein has any applicability to the way their services are 
offered.
7. Interface Recommendations
    Seven comments were received on law enforcement's interface 
recommendations. Two of the comments requested that interface 
recommendations be defined. Two comments stated that telecommunications 
carriers needed another opportunity to comment once the interface 
recommendations were made available because the interface 
recommendations document was considered to be a prerequisite to 
compliance. One comment noted that capacity requirements should include 
delivery channels. One comment stated that the Initial Notice did not 
define the capability to which the capacity requirements applied.
    Law enforcement is mandated by section 104 of CALEA to issue 
notices of actual and maximum capacity requirements. The Notice 
pertains solely to the fulfillment of this CALEA statutory mandate. 
Although law enforcement recognizes the importance of the comments 
regarding the interface and the capability requirements, such issues 
are not within the purview of the Capacity Notice.
8. Definition of Expeditious
    One comment was received on the definition of expeditious as used 
in section 104 of CALEA regarding the expeditious expansion to maximum 
capacity. The comment requested that the term ``expeditiously 
increase'' be explained. The comment also requested clarification to 
determine the level of effort expected from telecommunications carriers 
and what times of day would be required to effectuate interceptions.
    In response to the comment to define ``expeditious expansion to 
maximum capacity,'' law enforcement considers five business days from 
receipt of a court order by a telecommunications carrier from a duly 
authorized law enforcement official, to be a reasonable amount of time 
to allow for incremental expansion up to the maximum capacity. The 
level of effort (and the time of day) required from telecommunications 
carriers to effectuate interceptions will be dependent on CALEA 
solutions and times specified in electronic surveillance court orders.
9. Definition of Simultaneous
    One comment was received on the definition of simultaneous 
interception. The comment stated that the Initial Notice did not 
adequately define the term ``simultaneous surveillance'' so that switch 
capacity could be calculated.
    As described in the methodology section of the instant notice, law 
enforcement considers interceptions occurring on the same day to be 
simultaneous.
10. How Surveillances Were Calculated
    Two comments were received requesting clarification on how 
surveillances were calculated. One comment stated that law enforcement 
should clarify if multiple wiretap orders on the same target from 
different law enforcement agencies each accounted for one unit of 
capacity. One comment asked for clarification as to whether 
interception of a conference call with many multiple parties could be 
counted as multiple interceptions.
    In calculating surveillance numbers, law enforcement considered 
every line specified in an electronic surveillance-related court as one 
unit of capacity. This unit of capacity does not include the services 
and features (such as a conference call with multiple parties) an 
investigative subject may activate.
11. Separate Requirements for Communications (Call-Content), Pen 
Registers, and Trap and Traces and Inclusion of National Security 
Interceptions
    Four comments were received on the issue of releasing separate 
requirements for communications, pen register, and trap and trace 
interceptions. Two comments stated that clarification was needed to 
ensure that all lawful interception requirements were covered and that 
the requirements were the aggregate of communications, pen register, 
and trap and trace interceptions. One comment stated that the notice 
should include all surveillance types, both criminal and national 
security. One comment supported the notion that capacity requirements 
should be separated by communications, pen register, and trap and trace 
interceptions.
    Law enforcement chose not to issue capacity requirements by 
surveillance type due to the unpredictable nature of the types of 
surveillances that may be needed for a particular investigation. 
Additionally, law enforcement will not issue capacity requirements for 
interceptions associated with national security surveillances in an 
unclassified document.
12. Relationship Between Notices of Capacity and the Carrier Statement
    The comment received on the Carrier Statement requested 
clarification to assess the relationship between the Notice and the 
Carrier Statement.
    In response to the aforementioned comment, Carrier Statement issues 
have been reviewed in section IV.A of this Second Notice.
13. Historical Baseline of Interception Activity
    Eleven comments were received on the historical baseline of 
interception activity that law enforcement used to calculate its 
capacity requirements. Six

[[Page 1911]]

of the comments requested that the underlying data be made available. 
One comment noted that the capacity requirements must be consistent 
with historical information provided to law enforcement. Two comments 
requested that law enforcement compare law enforcement data to carrier 
data and that the two data sources be reconciled. One of the comments 
urged that the capacity requirements be established for actual numbers 
of simultaneous interceptions for the central office and that those 
numbers be based on data and information supplied by the carriers. 
Another comment stated that the capacity requirements should be based 
on historical activity.
    As stated in the methodology section of this notice, law 
enforcement has based the capacity requirements on the historical 
baseline of interception activity for specific geographic areas, and 
included reasonable growth factors to establish capacity levels for the 
future. Historical baselines are provided in the appendices of the 
Second Notice.
14. Methodology
    Eight comments were received questioning the methodology used for 
determining capacity requirements. Specifically, the comments asked law 
enforcement to explain its methodology and justify how actual and 
maximum capacity requirements were determined.
    In response to these comments, a methodology section included as 
part of the Second Notice describes that means by which capacity 
requirements were determined.
15. Funding and Cost Impact
    Fifteen comments were received on the issues of funding and cost 
impact. Three of the comments requested clarification on the cost 
impact of complying with CALEA if Congress did not appropriate funding. 
Two comments requested that law enforcement provide an equitable 
distribution plan for fund disbursement, while another suggested that 
law enforcement provide a reasonable assessment of the level of funding 
that was available for upgrades. Ten of the comments addressed the 
costs associated with compliance.
    Issues pertaining to cost recovery and funding are not the subject 
or intent of this Notice. Detailed information on funding and cost 
recovery issues is provided in the proposed cost recovery rules that 
were published in the Federal Register, 61 FR 21396, on May 10, 1996. A 
summary of these rules is included in section IV.B of the Second 
Notice.
16. Impact on Small Carriers
    Three comments were received on the effect that CALEA may have on 
small telephone companies. In particular, the comments indicated that 
high implementation costs might make compliance difficult to achieve. 
In addition, the comments stated that unnecessarily high capacity 
requirements might stifle the advancement of new and emerging 
telecommunications technologies in rural markets.
    Law enforcement recognizes that many small carriers provide service 
to geographic areas that historically have had minimal or no electronic 
surveillance activity. The capacity requirements stated in this notice 
are based on the historical interception activity for a given area. In 
order for law enforcement to effectively respond to future incidents of 
unusual and unexpected criminality, minimum capacity requirements have 
been established for areas with no history of interceptions.
    In response to the comment regarding the effect of capacity 
requirements on new and emerging technologies, law enforcement also 
recognizes that CALEA prohibits law enforcement from specifying the 
design of equipment, facilities, features, or systems, or adoption of 
any equipment, facility, service or feature by a telecommunications 
carrier.
17. Manufacturers' Concern
    Three comments were received expressing manufacturers' concerns 
with the capacity requirements. One of the comments noted that the 
Initial Notice might require capacity expansion beyond current 
manufacturers' capabilities. One comment stated that SMR manufacturers 
might not have the products required for SMR carriers to comply with 
the capacity requirements. One comment stated that equipment should be 
designed only from the perspective of the worst case scenario.
    Law enforcement has provided capacity estimates in this Second 
Notice that can be used by manufacturers in designing and developing 
CALEA-compliant solutions for wireline and wireless (cellular and PCS) 
technologies. Other technologies, such as SMR, will be addressed in 
subsequent Notices of Capacity.
18. Definitions of Installed or Deployed and Significant Upgrade
    One comment requested clarification on the terms ``installed'' or 
``deployed'', inquiring as to whether equipment ordered before January 
1, 1995, but not delivered until after January 1, 1995, would be 
considered installed or deployed. Another comment stated the term 
significant upgrade must be clearly defined.
    The terms installed or deployed and significant upgrade pertain to 
the assistance capability requirements and, therefore, are not within 
the purview of the Notices on Capacity. (It should be noted that the 
definition of installed or deployed was included in the proposed cost 
recovery rules published in the Federal Register, 61 FR 21396, on May 
10, 1996.)[*]
Louis J. Freeh,
Director, FBI.
[FR Doc. 97-318 Filed 1-13-97; 8:45 am]
BILLING CODE 4410-02-M

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[*] See the May 10, 1996 document at: http://jya.com/fbi051096.txt
