[Federal Register: October 16, 1995 (Volume 60, Number 199)]
[Notices]
[Page 53643-53646]
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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
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).

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--
    (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. Freeh,
Director.
[FR Doc. 95-25562 Filed 10-13-95; 8:45 am]
BILLING CODE 4410-02-M

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