[Federal Register: October 16, 1995 (Volume 60, Number 199)]

[Notices]

[Page 53643-53646]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr16oc95-100]



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DEPARTMENT OF JUSTICE



Federal Bureau of Investigation





Implementation of the Communications Assistance for Law

Enforcement Act



AGENCY: Federal Bureau of Investigation (FBI).



ACTION: Initial notice and requests for comments.



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SUMMARY: The FBI is providing initial notification of law enforcement

capacity requirements as mandated in section 104 of the Communications

Assistance for Law Enforcement Act. Comments regarding this initial

notice will be considered in the development of the final capacity

notice.



DATES: Written comments must be received on or before November 15,

1995.



ADDRESSES: Comments should be submitted in triplicate to the

Telecommunications Industry Liaison Unit (TILU), Federal Bureau of

Investigation, P.O. Box 220450, Chantilly, VA 22022-0450.



FOR FURTHER INFORMATION CONTACT:

Contact TILU at (800) 551-0336. Please refer to your question as a

capacity notice question.



I. Background



    On October 25, 1994, the President signed into law the

Communications Assistance for Law Enforcement Act (CALEA) (Public Law

103-414; 47 U.S.C. 1001-1010). This law presents law enforcement's

requirements for the surveillance of wire or electronic communications.

The primary purpose of the CALEA is to clarify a telecommunications

carrier's duty to assist law enforcement agencies with the lawful

interception of communications and the acquisition of call-identifying

information in an ever-changing telecommunications environment. To

ensure that law enforcement agencies can continue to conduct authorized

surveillance of wire or electronic communications, the CALEA states

that telecommunications carriers must meet the assistance capability

requirements set forth in section 103 of the Act (and restated in

Appendix A of this notice).

    Section 104 of the CALEA mandates that the Attorney General of the

United States provide notice of estimates for the actual and maximum

number of pen register, trap and trace, and communication intercepts

that law enforcement agencies may conduct and use simultaneously.

    The definitions for ``actual capacity'' and ``maximum capacity''

are included below:

    Actual Capacity--``notice of 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 the CALEA'' (CALEA, section 104(a)(1)(A)).

    Maximum Capacity--``notice of 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



[[Page 53644]]

4 years after of enactment of the CALEA'' (CALEA, section

104(a)(1)(B)).

    This Federal Register announcement serves as the initial notice of

the government's actual and maximum capacity requirements. These

requirements will aid telecommunications carriers in developing and

deploying solutions to meet the assistance capability requirements set

forth in section 103 of the CALEA. A final notice will be issued in

accordance with the CALEA requirements after considering comments to

this initial notice.

    The actual and maximum capacity requirements were developed by the

FBI in coordination with law enforcement. By order of the Attorney

General of the United States, as codified in 28 CFR 0.85 (o),

government implementation responsibilities under the CALEA were

delegated to the FBI. The FBI, in turn, is establishing TILU to carry

out the government's implementation responsibilities, including the

publication of capacity notices.

    For the purposes of this document, the terms defined in section

2510 of title 18, United States Code, and section 102 of the CALEA

(section 1001 of title 47, United States Code) have, respectively, the

meanings stated in those sections. Additional clarification of terms is

provided in Appendix B of this notice.



II. Introduction



    The capacity figures in this notice reflect the combined number of

simultaneous pen register, trap and trace, and communication

interceptions that law enforcement may conduct by October 25, 1998. All

telecommunications carriers must, within 3 years after the publication

of the final notice of capacity requirements or within 4 years after

the date of enactment of the CALEA, whichever is longer, ensure that

their systems are capable of accommodating simultaneously the number of

pen register, trap and trace, and communication interceptions

identified in the actual capacity requirements. Furthermore, all

telecommunications carriers shall ensure capabilities exist to

expeditiously accommodate any increase in the actual number of pen

register, trap and trace, and communication interceptions that

authorized agencies may seek to conduct and use, up to the maximum

capacity requirement. Some carriers may not need to make modifications

to their equipment, facilities, and services in response to this notice

because they currently meet all law enforcement capacity and capability

requirements for electronic surveillance.

    The capacity requirements are not intended to specify, required or

prohibit adoption of any particular system design or configuration by a

telecommunications carrier, equipment manufacturer, or support services

provider. These entities must develop an appropriate solution to comply

with the capacity requirements set forth in this notice and with the

assistance capability requirements found in section 103 of the CALEA.

In developing solutions, carriers should consider the effect that

particular services and features may have on capacity requirements. For

example, the required number of ports, lines, or other network

resources may vary depending upon the use of particular services and

features by an intercept subject. The FBI, along with other law

enforcement agencies, will be available, through the consultative

process, to discuss these engineering issues.

    In accordance with the intent of the CALEA, carriers must ensure

that their equipment, facilities, or services that provide a customer

or subscriber with the ability to originate, terminate, or direct

communications are capable of meeting the capability and capacity

requirements mandated by the CALEA. These requirements apply to

existing and future telecommunications carriers.



III. Capacity Requirements Derivation



    The capacity figures that are presented in this initial notice were

derived as a result of a thorough analysis of electronic surveillance

needs. Information regarding electronic surveillance activities for a

specific time period was obtained from telecommunications carriers, law

enforcement, U.S. District Courts, State Courts, State Attorneys

General, and State District Attorneys to establish a historical

baseline of activity.

    The historical baseline of electronic surveillance activity was

determined after examination of both the location and occurrence of

each electronic surveillance reported. The historical baseline was then

analyzed to derive the total and simultaneous electronic surveillance

activity by switch and within specific geographic areas. Future

capacity needs were then determined after consideration of the impact

of demographics, market trends, and other factors on the historical

baseline.

    The analysis indicates that electronic surveillance activity varies

by geographic area. Therefore, the capacity requirements will vary by

geographic area. The capacity requirements are reported by category,

with each geographic area being assigned to one of three distinct

categories. The use of categories enables capacity requirements to be

stated in a manner that reasonably represents law enforcement

electronic surveillance needs in all geographic areas, yet does not

overburden the telecommunications industry by holding all carriers to

the same level of capacity.

    Category I (the highest category) and Category II (the intermediate

category) represent those geographic areas where the majority of

electronic surveillance activity occurs. Only a few of the most densely

populated areas, which have historically been areas of high electronic

surveillance activity, are grouped into Category I. Other densely

populated areas and some suburban areas, with moderate electronic

surveillance activity, are grouped into Category II. The numbers for

these categories were derived based on the analysis described above.

Category I and Category II apply to approximately 25 percent of the

equipment, facilities, and services covered by the survey over the time

period.

    Category III (the lowest category) represents law enforcement's

minimum acceptable capacity requirements for electronic surveillance

activity. This category covers all other geographic areas. The numbers

for Category III were derived by analyzing areas of historically low

electronic surveillance activity and projecting future needs in order

to establish a requirement for a minimum level of capacity for

electronic surveillance.

    All telecommunications carriers are expected to meet the minimum

capacity requirements of Category III. Carriers will be individually

notified of those specific geographic areas within the areas they serve

that exceed Category III and warrant a Category I or Category II

capacity requirement. The individual carrier notifications will occur

contemporaneously with the publication of the final notice. It is

anticipated that the majority of the area served by a carrier will fall

into Category III; however, if Category I and Category II capacity

requirements are necessary, they are likely to affect only a small

portion of their area served.

    This initial capacity notice includes the actual and maximum

capacity requirements for Categories I, II, and III. After considering

comments to this initial notice, a final notice will be published.

Future changes to the maximum capacity requirements issued in the final

notice will be published in the Federal Register, as necessary, in

accordance with section 104(c).



[[Page 53645]]



IV. Initial Statement of Actual and Maximum Capacity



    The actual and maximum capacity requirements are presented as a

percentage of the engineered capacity of the equipment, facilities, and

services that provide a customer or subscriber with the ability to

originate, terminate, or direct communications. Engineered capacity

refers to the maximum number of subscribers that can be served by that

equipment, facility, or service. Frequently, the percentage is applied

to the engineered subscriber capacity of a switch, however, the

percentage can also apply to nonswitch equipment (i.e., network

peripherals) involved in the origination, termination, or direction of

communications. Percentages are being used rather than fixed numbers

due to the dynamics and diversity of the telecommunications industry.

The use of percentages allows telecommunications carriers the

flexibility to adjust to changes in marketplace conditions or changes

in the number of subscribers, access lines, equipment, facilities,

etc., and still know the required level of capacity.

    As a result of extensive consultation with federal, State, and

local law enforcement agencies, telecommunications carriers, providers

of telecommunications support services, and manufacturers of

telecommunications equipment, the FBI proposes the following capacity

requirements for Categories I, II, and III:



Category I



Actual Capacity

    Each telecommunications carrier must provide the ability to meet

the capability assistance requirements defined in section 103 of the

CALEA for a number of simultaneous pen register, trap and trace, and

communication interceptions equal to 0.5% 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.

Maximum Capacity

    Each telecommunications carrier must ensure that it can

expeditiously increase its capacity to meet the assistance capability

requirements defined in section 103 of the CALEA for a number of

simultaneous pen register, trap and trace, and communication

interceptions equal to 1% 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.



Category II



Actual Capacity

    Each telecommunications carrier must provide the ability to meet

the capability assistance requirements defined in section 103 of the

CALEA for a number of simultaneous pen register, trap and trace, and

communication interceptions equal to 0.25% 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.

Maximum Capacity

    Each telecommunications carrier must ensure that it can

expeditiously increase its capacity to meet the assistance capacity

requirements defined in section 103 of the CALEA for a number of

simultaneous pen register, trap and trace, and communication

interceptions equal to 0.5% 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.



Category III



Actual Capacity

    Each telecommunications carrier must provide the ability to meet

the capability assistance requirements defined in section 103 of the

CALEA for a number of simultaneous pen register, trap and trace, and

communication interceptions equal to 0.05% 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.

Maximum Capacity

    Each telecommunications carrier must ensure that it can

expeditiously increase its capacity to meet the assistance capability

requirements defined in section 103 of the CALEA for a number of

simultaneous pen register, trap and trace, and communication

interceptions equal to 0.25% 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.

    When translated from percentages to numbers, capacity requirements

should be rounded up to the nearest whole number.



V. Carrier Statements and Consultation



    As set forth in section 104(d) of the CALEA, each

telecommunications carrier is required to provide within 180 days after

publication of the final capacity notice a statement identifying any of

its systems or services that do not have the capacity to meet the

assistance capability requirements stated in section 103 of the CALEA.

These carrier statements will be used in conjunction with law

enforcement priorities and other factors to determine the specific

equipment, facilities, and services that require immediate modification

and that may be eligible for cost reimbursement. The FBI will consult

with telecommunications carriers to establish a template for responding

to the capability and capacity requirements.



Appendix A--CALEA, Sec. 103 (Pub. L. 103-414; 47 U.S.C. 1002)

Assistance Capability Requirements



    (a) Capability Requirements.--Except as provided in subsections

(b), (c), and (d) of this section and sections 108(a) and 109(b) and

(d), a telecommunications carrier shall ensure that its equipment,

facilities, or services that provide a customer or subscriber with

the ability to originate, terminate, or direct communications are

capable of--

    (1) expeditiously isolating and enabling the government,

pursuant to a court order or other lawful authorization, to

intercept, to the exclusion of any other communications, all wire

and electronic communications carried by the carrier within a

service area to or from equipment, facilities, or services of a

subscriber of such carrier concurrently with their transmission to

or from the subscriber's equipment, facility, or service, or at such

later time as may be acceptable to the government;

    (2) expeditiously isolating and enabling the government,

pursuant to a court order or other lawful authorization, to access

call-identifying information that is reasonably available to the

carrier--

    (A) before, during, or immediately after the transmission of a

wire or electronic communication (or at such later time as may be

acceptable to the government); and

    (B) in a manner that allows it to be associated with the

communication to which it pertains, except that, with regard to

information acquired solely pursuant to the authority for pen

registers and trap and trace devices (as defined in section 3127 of

title 18, United States Code), such call-identifying information

shall not include any information that may disclose the physical

location of the subscriber (except to the extent that the location

may be determined from the telephone number);

    (3) delivering intercepted communications and call-identifying

information to the government, pursuant to a court order or other

lawful authorization, in a format such that they may be transmitted

by means of equipment, facilities, or services procured by the

government to a location other than the premises of the carrier; and

    (4) facilitating authorized communications interceptions and

access to call-identifying information unobtrusively and with a

minimum of interference with any subscriber's telecommunications

service and in a manner that protects--



[[Page 53646]]



    (A) the privacy and security of communications and call-

identifying information not authorized to be intercepted; and

    (B) information regarding the government's interception of

communications and access to call-identifying information.

    (b) Limitations.--

    (1) Design of Features and Systems Configurations.--This title

does not authorize any law enforcement agency or officer--

    (A) to require any specific design of equipment, facilities,

services, features, or system configurations to be adopted by any

provide of a wire or electronic communication service, any

manufacturer of telecommunications equipment, or any provider of

telecommunications support services; or

    (B) to prohibit the adoption of any equipment, facility,

service, or feature by any provider of a wire or electronic

communication service, any manufacturer of telecommunications

equipment, or any provider of telecommunications support services.

    (2) Information Services; Private Networks and Interconnection

Services and Facilities.--The requirements of subsection (a) do not

apply to--

    (A) information services; or

    (B) equipment, facilities, or services that support the

transport or switching of communications for private networks or for

the sole purpose of interconnecting telecommunications carriers.

    (3) Excryption.--A telecommunications carrier shall not be

responsible for decryping, or ensuring the government's ability to

decrypt, any communication encrypted by a subscriber or customer,

unless the encryption was provided by the carrier and the carrier

possesses the information necessary to decrypt the communication.

    (c) Emergency or Exigent Circumstances.--In emergency or exigent

circumstances (including those described in sections 2518 (7) or

(11)(b) and 3125 of title 18, United States Code, and section

1805(e) of title 50 of such Code), a carrier at its discretion may

comply with subsection (a)(3) by allowing monitoring at its premises

if that is the only means of accomplishing the interception or

access.

    (d) Mobile Service Assistance Requirements.--A

telecommunications carrier that is a provider of commercial mobile

service (as defined in section 332(d) of the Communications Act of

1934) offering a feature or service that allows subscribers to

redirect, hand off, or assign their wire or electronic

communications to another service area or another service provider

or to utilize facilities in another service area or of another

service provider shall ensure that, when the carrier that had been

providing assistance for the interception of wire or electronic

communications or access to call-identifying information pursuant to

a court order or lawful authorization no longer has access to the

content of such communications or call-identifying information

within the service area in which interception has been occurring as

a result of the subscriber's use of such a feature or service,

information is made available to the government (before, during, or

immediately after the transfer of such communications) identifying

the provider of a wire or electronic communication service that has

acquired access to the communications.



Appendix B--Glossary



    Communication Interceptions--Regarding a wire or an electronic

communication, communication interceptions include any information

concerning the substance, purport, or meaning of that communication.

Communication interceptions apply to any type of wire or electronic

communications (i.e., any transfer of signs, signals, writing,

images, sounds, data, or intelligence of any nature).

    Call-Identifying Information--Dialing or signaling information

that identifies the origin, direction, destination, or termination

of each communication generated or received by a subscriber by means

of any equipment, facility, or service of a telecommunications

carrier. (See Pub. L. 103-414, Section 102(2))

    Electronic Surveillance--The statutory-based legal

authorization, process and the associated technological capabilities

and activities related to communication interceptions and the

acquisition of call-identifying information as defined above.

    Law Enforcement--Federal, State, and local law enforcement

agencies.

    Pen Register--A device that records or decodes electronic or

other impulses that identify the numbers dialed or otherwise

transmitted on the telephone line to which such device is attached,

but such term does not include any device used by a provider or

customer of a wire or electronic communication service for billing,

or recording as and incident to billing, for communications service

provided by such provider or any device used by a provider or

customer of a wire communications service for cost accounting or

other like purposes in the ordinary course of its business. (18

U.S.C. 3127(3))

    Telecommunications Carrier--Any person or entity engaged in the

transmission or switching of wire or electronic communications as a

common carrier for hire; including as a person or entity engaged in

providing commercial mobile services (as defined in section 322(d)

of the Communications Act of 1934) and a person or entity engaged in

providing wire or electronic communication switching or transmission

service to the extent that the Federal Communications Commission

finds that such service is a replacement for a substantial portion

of the local telephone exchange service and that it is in the public

interest to deem such a person or entity to be a telecommunications

carrier for purposes of Title I of the CALEA. The term does not

include persons or entities insofar as they are engaged in providing

information services and any class or category of telecommunications

carriers that the Commission exempts by the rule after consultation

with the U.S. Attorney General. (See Pub. L. 103-414, Section

102(8))

    Trap and Trace--A device that captures the incoming electronic

or other impulses that identify the originating number of an

instrument or device from which a wire or electronic communication

was transmitted. (18 U.S.C. 3127(4))



    Dated: October 10, 1995.

Louis J. Freey,

Director.

[FR Doc. 95-25562 Filed 10-13-95; 8:45 am]

BILLING CODE 4410-02-M

