[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]


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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