[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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