18 December 1998
Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html

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[Federal Register: December 18, 1998 (Volume 63, Number 243)]
[Notices]
[Page 70160-70162]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de98-118]

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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation


Implementation of Section 104 of the Communications Assistance
for Law Enforcement Act: Telecommunications Services Other Than Local
Exchange Services, Cellular, and Broadband PCS

AGENCY: Federal Bureau of Investigation, DOJ.

ACTION: Notice of inquiry.

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SUMMARY: The purpose of this Notice of Inquiry (NOI) is to present
certain telecommunications carries and all other interested parties
with an opportunity to provide input to the Federal Bureau of
Investigation (FBI) as it develops law enforcement's capacity
requirements for services other than local exchange, cellular, and
broadband personal communications services (PCS). The Communications
Assistance for Law Enforcement Act (CALEA) mandate that the Attorney
General, on behalf of all law enforcement, provide capacity
requirements for the actual and maximum number of interceptions (of
call content and/or call-identifying information) that
telecommunications carriers may be required to effect in support of law
enforcement's electronic surveillance needs. This NOI is soliciting
information on and suggestions for developing reasonable methodologies
for characterizing capacity requirements for telecommunications
services other than local exchange services, cellular, and broadband
PCS. Such services include, but are not limited to: traditional paging,
two-way paging, narrowband PCS, mobile satellite services (MSS),
specialized mobile radio (SMR) and enhanced specialized mobile radio
(ESMR), national and multi-rate services, asynchronous transfer mode
(ATM), X.25, frame relay, airplane telephony, and railroad telephony.

DATES: Comments must be received on or before February 16, 1999.

ADDRESSES: Comments should be submitted to the Federal Bureau of
Investigation, CALEA Implementation Section, Attention: Notice of
Inquiry, 14800 Conference Center Drive, Suite 300, Chantilly, VA 20151.
All comments will be available for review at the FBI's Freedom of
Information and Privacy Act (FOIPA) Reading Room located at FBI
Headquarters, 935 Pennsylvania Avenue, NW, Washington, DC 20535. To
review the comments, interested parties should contact the FBI's FOIPA
Reading Room staff, telephone number (202) 324-7510, to schedule an
appointment (48 hours advance notice required). While printed comments
are welcome, commenters are encouraged to submit their responses on
electronic media. Electronic documents must be in WordPerfect 6.1 (or
earlier) or Rich Text Format (RTF) format. Comments must be the only
file on the 3.5 inch disk. In addition, all electronic submissions must
be accompanied by a printed sheet listing the name, company or
organization name address, and telephone number of an individual who
can replace the disk should it be damaged in transit.

[[Page 70161]]

SUPPLEMENTARY INFORMATION:

I. Background

A. Purpose of CALEA

    On October 25, 1994, President Clinton signed into law the
Communications Assistance for Law Enforcement Act (CALEA).\1\ Its
objective is to make clear a telecommunications carrier's duty to
cooperate with law enforcement with regard to electronic surveillance-
related interceptions for law enforcement purposes.\2\ CALEA was
enacted to preserve law enforcement's ability (pursuant to court order
or other lawful authorization) to access call content and call-
identifying information in an ever-changing telecommunications
environment. On March 3, 1995, the Attorney General delegated to the
Director of the FBI, or his designee(s) the authority to carry out the
responsibilities conferred upon the Attorney General in Title I of
CALEA.\3\ The FBI is implementing CALEA on behalf of all Federal,
state, and local law enforcement agencies.
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    \1\ Pub. L. 103-414, 47 U.S.C. 1001-1010.
    \2\ For purposes of this NOI, the word ``interception'' is used
to refer to either the interception of call content or call-
identifying information.
    \3\ See 28 CFR 0.85(o).
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    In 1968, when Congress statutorily authorized court-ordered
electronic surveillance, there were no technological limitations on the
number of call content or call-identifying interceptions that could be
conducted.\4\ However, the onset of new and advanced services has begun
to erode the telecommunications industry's ability to support law
enforcement's court-authorized interception needs. In an effort to
preserve the ability to conduct interceptions, Congress determined that
technological solutions must be employed to meet the needs of law
enforcement through the provision of new and advanced services.
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    \4\ See Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended, 18 U.S.C. 2510-2522.
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    The intent of CALEA is to define and clarify the level of
assistance required from the telecommunications industry. CALEA does
not alter or expand law enforcement's fundamental statutory authority
to intercept communications. 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 provide law enforcement with the technical assistance
necessary to carry out the court-authorized intercepts.

B. Capacity Notice Mandate

    Because many future interceptions will be effected through
equipment controlled by telecommunications carriers, section 104 of
CALEA requires the Attorney General to provide carriers with
information they will need (a) to be capable of accommodating the
actual number of simultaneous interceptions at specific geographic
locations that law enforcement may need to conduct, and (b) to size and
design their networks to accommodate the maximum number of simultaneous
interceptions at specific geographic locations that law enforcement may
need to conduct at some future date. These two information elements are
referred to in CALEA as ``actual'' and ``maximum'' capacity
requirements. In accordance with section 104 of CALEA, the Attorney
General must provide notice of estimated 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.\5\
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    \5\ See 47 U.S.C. 1003(a)(1)(A).
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    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.\6\
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    \6\ See 47 U.S.C. 1003(a)(1)(B).

    Under section 104 of CALEA, telecommunications carriers must be in
compliance  with capacity requirements 3 years after the effective date
of a Final Notice of Capacity for a specific telecommunications
service. Although the Attorney General must estimate the actual number
of call content interceptions, pen registers, and trap and traces that
a carrier may be required to accommodate simultaneously at specific
geographic locations by that date, the estimates should not be
interpreted to mean the number of interceptions that law enforcement
intends to, or is planning to, conduct.\7\ The number of interceptions
that will actually be needed will be determined by active law
enforcement investigations requiring authorized electronic
surveillance.
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    \7\ 47 U.S.C. 1003(b)(1).
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    Maximum capacity, on the other hand, is a capacity level that
telecommunications carriers must be able to accommodate
``expeditiously'' if law enforcement requires an increase in the
future. The term ``expeditious'' specifically refers to Section 104
capacity requirements regarding incremental expansion up to the maximum
capacity.\8\ 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.
Because CALEA does not define the term ``expeditiously,'' this NOI
solicits from interested parties suggestions for the appropriate length
of time to be designated for incremental expansion to the maximum
capacity.
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    \8\ 47 U.S.C. 1003(b)(2).
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    Law enforcement has interpreted maximum capacity chiefly as a
requirement that telecommunications carriers will follow to determine 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
provides 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 an unusual level of interception
activity.

C. Final Notice of Capacity for Local Exchange, Cellular and Broadband
PCS Services

    On March 12, 1998, the FBI published in the Federal Register\9\ a
Final Notice of Capacity. While CALEA applies to all telecommunications
carriers,\10\ the March 12, 1998 Final Notice of Capacity covered only
those telecommunications carriers offering local exchange services and
certain commercial mobile radio services, specifically cellular service
and broadband PCS.\11\ Exclusion from the March 12, 1998 Final Notice
of Capacity of other telecommunications carriers that have services
currently deployed or anticipate deploying services in the near term,
does not exempt them from the statutory obligations of CALEA. Thus, the
purpose of this NOI is to give telecommunications carriers providing
other telecommunications services covered by CALEA an opportunity to
provide input to the FBI as it develops

[[Page 70162]]

law enforcement's capacity requirements.
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    \9\ 63 FR 12218 (March 12, 1998).
    \10\ Telecommunications carrier as defined by 47 U.S.C. 1001(8).
    \11\ Specifically, it refers to those services operating in the
licensed portion of the 2 GHz band of the electromagnetic spectrum,
from 1850 MHz to 1990 MHz.
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II. Capacity Requirements for Telecommunications Services Other
Than Local Exchange Services, Cellular, and Broadband PCS

    Given the dynamic nature of the telecommunications industry and the
diverse nature of telecommunications services, the FBI has determined
that it is in the best interest of all parties concerned that it
solicit input from the telecommunications industry and other interested
parties regarding the development of reasonable methodologies for
characterizing capacity requirements for telecommunications services
other than local exchange, cellular, and broadband PCS, prior to
instituting a rulemaking proceeding.\12\ The FBI is committed to the
consultative process and to maintaining an on-going dialogue with the
telecommunications industry. The FBI seeks to draw upon the expertise
of industry to gain an understanding of the range of options available
for expressing capacity requirements for various telecommunications
services. Those services yet to be address by a notice of capacity
include, but are not limited to:
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    \12\ This action is considered a rulemaking under the
Administrative Procedure Act, 5 U.S.C. Sec. 553.
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    <bullet> Traditional paging,
    <bullet> Two-way paging,
    <bullet> Narrowband PCS,
    <bullet> MSS,
    <bullet> SMR and ESMR,
    <bullet> National and multi-rate services,
    <bullet> Asynchronous transfer mode (ATM),
    <bullet> X.25,
    <bullet> Frame relay,
    <bullet> Airplane telephony, and
    <bullet> Railroad telephony.
    Any telecommunications carriers whose services were not covered in
the March 12, 1998 Final Notice of Capacity but are subject to CALEA,
are strongly encouraged to comment on this NOI.
    Commenters are asked to address the requirements regarding the
basis for capacity notices set forth in CALEA section 104(a)(2):

    The notices issued. * * *
    (A) may be based upon the type of equipment, type of service,
number of subscribers, type or size of carrier, nature of service
area, or any other measure; and
    (B) shall identify, to the maximum extent practicable, the
capacity required at specific geographic locations.

    Commenters should address approaches that are best suited to their
specific services, with emphasis upon the capacity needed on a
geographic basis. However, the FBI recognizes that certain services may
not lend themselves to geographic expression, and therefore also
encourages comments on alternative means of characterizing capacity.
Commenters are also asked to address any other service-specific
capacity issues that the FBI should take into consideration when
developing capacity methodologies. While different services will
require different methods for characterizing capacity, commenters
should review the methodology for determining capacity requirements set
forth in the March 12, 1998 Final Notice of Capacity before preparing
comments in this proceeding.\13\ Also, because CALEA does not define
the term ``expeditiously,'' this NOI solicits from interested parties
suggestions for the appropriate length of time to be designated for
incremental expansion to the maximum capacity.
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    \13\ See 63 FR 12218, and 12224-12227 (March 12, 1998).
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    The FBI is committed to giving all interested parties the
opportunity for meaningful participation in CALEA and will continue to
work with the telecommunications industry to develop capacity
methodologies and notices of capacity for all telecommunications
services subject to CALEA.\14\
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    \14\ The FBI is acting in accordance with the rulemaking
requirements of the Administrative Procedure Act, 5 U.S.C. 553.
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    This is a Notice of Inquiry proceeding where ex parte
communications are permitted pursuant to 28 CFR 50.17.

[47 U.S.C. Secs. 1001-1010]

    Dated: December 15, 1998.
Louis J. Freeh,
Director, Federal Bureau of Investigation, Department of Justice.
[FR Doc. 98-33634 Filed 12-17-98; 8:45 am]
BILLING CODE 4410-02-M
