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15 December 2006
[Federal Register: December 15, 2006 (Volume 71, Number 241)]
[Notices]
[Page 75581-75584]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de06-103]
[[Page 75581]]
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DEPARTMENT OF JUSTICE
Federal Bureau of Investigation
[Docket No. FBI 109]
RIN 1100-AA14
Implementation of Section 104 of the Communications Assistance
for Law Enforcement Act
AGENCY: Federal Bureau of Investigation, (FBI), Justice.
ACTION: Final Notice of Capacity; Notice of Response to Comments on
Supplement for the Purpose of Responding to Remand.
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SUMMARY: By this Notice, the FBI is responding to comments submitted on
its Supplement for the Purpose of Responding to Remand
(``Supplement''), published previously on December 5, 2003, at 68 FR
68112. As stated therein, the Supplement was published for the purpose
of responding to a court decision to remand for further explanation two
issues from the Final Notice of Capacity. The Final Notice of Capacity
was published on March 12, 1998 at 63 FR 12218, pursuant to the
requirements of the Communications Assistance for Law Enforcement Act
(``CALEA''), 47 U.S.C. 1001, et seq. As stated in the Supplement, the
court did not vacate the Final Notice of Capacity, and only required
further explanation as to the two remanded issues. Neither this Notice,
nor the Supplement constitute a republishing of the Final Notice of
Capacity, and Telecommunications carriers should note that the
provisions of 47 U.S.C. 1003(d) do not apply to today's Notice and
should not file a ``carrier statement'' in response thereto.
FOR FURTHER INFORMATION CONTACT: Contact the CALEA Implementation Unit,
Federal Bureau of Investigation (FBI) at (703) 814-4700, or at CALEA
Implementation Unit, 14800 Conference Center Drive, Chantilly, VA
20153.
I. Background
A. CALEA Generally
Congress enacted the Communications Assistance for Law Enforcement
Act (``CALEA'') in 1994 to require telecommunications carriers to
ensure that their networks have the capability to enable local police,
federal officers and all other law enforcement agencies to conduct
lawfully authorized electronic surveillance. Electronic surveillance is
an indispensable tool used in investigating serious crimes, including
terrorism, drug trafficking, and kidnaping. Congress has long
recognized the importance of this investigative technique, and has
authorized and governed its use through several laws, including Title
III of the Omnibus Crime Control and Safe Streets Act of 1968, 18
U.S.C. 2510 et seq. (``Title III''), the Electronic Communications
Privacy Act of 1986, 18 U.S.C. 2701 et seq. (``ECPA''), and the Pen
Registers and Trap and Trace Devices provisions, 18 U.S.C. 3121 et
seq., as those laws were modified by the USA PATRIOT Act, Pub. L. 107-
56, 115 Stat. 272.
The electronic surveillance laws cited above delineate the
government's lawful authority to intercept communications and acquire
call-identifying information. CALEA, by contrast, is intended to
preserve the government's technical ability to engage in electronic
surveillance as allowed by law. It does so by requiring
``telecommunications carriers'' to design or modify their systems to
ensure the government's ability to intercept communications and acquire
call-identifying information, pursuant to lawful authorization.
In addition, CALEA contains ``capacity requirements.'' See
generally id Sec. 1003. The capacity provisions generally require
carriers to be capable of supporting a certain number of communications
interceptions, pen registers, and traps and traces at the same time.
These provisions also require the Attorney General to issue a Notice of
the maximum and actual capacity requirements setting forth the
``maximum'' and ``actual'' number of communications interceptions, pen
registers, and traps and traces that all government agencies may, in
the future, conduct and use at the same time. The FBI Director is the
authorized delegate of the Attorney General with respect to the
implementation of CALEA, and therefore has issued such Notices of
Capacity on the Attorney General's behalf.
B. Notices of Capacity
In 1995, the FBI published an Initial Notice of Capacity which
expressed capacity requirements in terms of a ``percentage of
engineered capacity.'' 60 FR 53,643 (Oct. 16, 1995). After receiving
comments from the public we revised that methodology and published a
Second Notice of Capacity. 62 FR 1902 (Jan. 14, 1997). After an
additional round of comments, we published the Final Notice of Capacity
(referred to herein as the ``Final Notice'') on March 12, 1998. 63 FR
at 12218-12310. At all times, we sought and incorporated the comments
of the telecommunications industry, which assisted us in understanding
the challenges facing the industry and others in applying the capacity
requirements. The FBI acted on behalf of all federal, state and local
law enforcement agencies nationwide in establishing these capacity
requirements.
C. Court Decision
On January 18, 2002, the District of Columbia Circuit ruled on a
number of challenges to the Final Notice. See USTA v. FBI, 276 F.3d 620
(D.C. 2002). While the Court's decision largely upheld the Final
Notice, it vacated one issue and remanded two others to the FBI. The
Court vacated the statement in the Final Notice (63 FR 12219) that
``law enforcement considers 5 business days from a telecommunications
carrier's receipt of a court order to be a reasonable time within which
to permit an incremental expansion up to the maximum capacity.'' USTA,
276 F.3d at 627. The Court also required the FBI to provide further
explanation of: (1) Our decision to count any two historical
surveillances occurring on the same day as simultaneous and, (2) our
decision to set forth only one ``actual'' and one ``maximum'' capacity
requirement number per geographic region, rather than separate
requirements for each type of surveillance (communications
interceptions, pen registers, traps and traces).
The Court's concern with both of these issues centered on the
explanations contained in the Final Notice. The Court did not vacate
these portions of the Final Notice, but directed the district court to
remand them to the FBI for a more adequate explanation.
D. FBI Response to Remand
The FBI published a ``Supplement for the Purpose of Responding to
Remand (``Supplement'')'' on December 5, 2003. For a complete
explanation of the background for the Supplement, see 68 FR 68112.
By way of background, the FBI published the Supplement in order to
respond to the two issues described in the preceding section which were
remanded to the FBI by the Court of Appeals in USTA v. FBI, 276 F.3d
620 (D.C. 2002), with regard to the FBI's Final Notice of Capacity
(``Final Notice''). The Final Notice was published on March 12, 1998 at
63 FR 12218. In the Supplement, the FBI provided additional reasoning,
not previously before the Court, for its decision in the Final Notice
to count any two historical surveillances occurring on the same day as
simultaneous. In addition, the Supplement contained further guidance
for carriers with regard to the numerical capacity requirements stated
in the
[[Page 75582]]
Final Notice. This further guidance provided carriers with a method for
breaking down such numerical capacity requirement numbers between
communications interceptions and acquisitions of call-identifying
information (pen registers or traps and traces). Carriers may utilize
this guidance to ascertain the maximum number of communications
interceptions that their systems must be capable of accommodating by
reference to a percentage limitation and the capacity requirement for
each geographic region. In many cases, this further guidance will lower
the number of communications interceptions that a carrier might
otherwise be required to accommodate based on the capacity
requirements.
E. This Publication
Some parties filed comments in response to the Supplement. The
purpose of this publication is to summarize those comments and set
forth the FBI's responses. As discussed in the next section, the FBI
carefully considered any arguments or suggestions raised in such
comments, with particular attention to any comments filed in response
to the proposed breakdown of capacity requirements. Having considered
such arguments, the FBI has determined that no changes should be made
to the Supplement, including the proposed breakdown of capacity
requirements, and it should be adopted as filed.
II. Response to Comments
The FBI received only three comments regarding the Supplement.
Comments were submitted by the United States Telecommunications
Association (USTA), MCI Worldcom (MCI), and Verizon. Having considered
the comments, the FBI has determined that no changes are necessary to
the Supplement either with regard to the additional reasoning supplied
regarding the interpretation of ``simultaneously'' or with regard to
the proposed breakdown of capacity requirements. A detailed response to
such comments follows.
A. Meaning of the Term ``Simultaneously''
Two of the three commenters, USTA and MCI, discussed the additional
reasoning provided in the Supplement by the FBI with regard to the
meaning of the term ``simultaneously.'' Both of these comments,
however, have only raised again the same issues previously considered
and discussed by the FBI in the Supplement. Both USTA and MCI commented
that the FBI's approach in Final Notice of Capacity (``Final Notice'')
is still unreasonable because it does not reflect ``actual
simultaneity'' (Worldcom, at 3) or ``interceptions [that] actually
overlap in time.'' (USTA, 3). They argue the Supplement incorrectly
continues to rely on the same approach taken in the Final Notice of
Capacity. They further argue that the FBI should rather have abandoned
its existing Final Notice of Capacity, conducted a new survey, and
issued a new Notice of Capacity based on a methodology that treats only
``overlapping'' intercepted phone calls as ``simultaneous.''
As detailed in the Supplement, the FBI has already considered and
rejected the methodology suggested by these comments, which is
essentially to issue a new Notice of Capacity based upon on an estimate
of the number of times that two or more ongoing surveillances will each
be engaged in intercepting phone calls at the same time. See generally
FR 68,114-68,118. Neither USTA nor MCI add any further weight or new
information to this alternative interpretation requiring consideration
of the number of ``overlapping'' intercepted phone calls. We reiterated
in the Supplement that the FBI's approach was to treat any two or more
ongoing surveillances, on the same day, as simultaneous. We explained
in the Supplement that this approach represented a reasonable
interpretation of the statutory language. 68 FR 68,114. It was also
better suited to providing adequate notice of capacity requirements to
carriers and law enforcement, particularly in the case of carriers
whose systems require continuously dedicated resources during the
entire surveillance effort, not just during those times when phone
communications are actually being intercepted.
In the Supplement, we also observed that the capability of some
carriers' systems is directly affected by the number of ongoing
surveillances, not by the number of ``overlapping'' intercepted
telephone calls. These carriers'' technical interception solutions
require resources to be dedicated for the entire time period during
which a surveillance is ongoing, regardless of whether the intercept
subject is actually using the telephone for communications. We found
that if the capacity estimates were based only on the ``phone-call-
overlap'' concept as suggested by USTA and MCI in its comments, that
these dedicated-resource type carriers might underestimate law
enforcement's needs. See 68 FR 68,115.
Both USTA and MCI agree with the fact that some carriers' actually
require the continuous dedication of system resources for each ongoing
surveillance (regardless of the existence of overlapping phone calls),
but they argue that the FBI's consideration of this fact is
inappropriate because today's carriers do not prefer this method. See
USTA, p. 5; MCI, p. 4. As explained in the Supplement, however, the FBI
approach to estimating capacity requirements is ``system-neutral'' in
that it does not assume that carriers will adopt any particular method
or approach. Indeed, as we noted in the Supplement, since the FBI
cannot require carriers to use any particular type of system, the
capacity requirements must be tailored to fit any approach carriers
might take.\1\
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\1\ See, e.g., 47 U.S.C. 1002(b)(1) (``This subchapter does not
authorize any law enforcement agency or officer to require any
specific design * * * or system configurations * * *'').
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USTA, also appears to agree with the FBI's application of the term
``simultaneous'' in the context of a carrier that is utilizing the
dedicated-resource-approach to facilitating interception. In
particular, USTA itself acknowledges that where a carrier uses a
dedicated connection, such as a T1 line, then such an approach would
require that ``an intercept be dedicated for the entire time of the
surveillance * * *. Hence, an intercept could extend for an entire day
and could overlap with other intercepts that may occur on the same
day.'' USTA, p. 5. USTA adds, however, that such dedicated-resource
systems constitute ``new technology'' and should not be considered as
justifying the capacity requirements set forth in the Final Notice,
mainly because the Final Notice was based on a survey of surveillance
conducted in older-technology systems. Somewhat conversely, MCI
comments that dedicated-resource systems are ``outdated'' and that non-
dedicated resource systems are now ``predominant,'' and therefore FBI
should conduct a new survey of the ``instantaneous use of switching
capacity.'' (MCI, 4).
We continue to disagree with both the factual premise and the
conclusion of these points. Carrier systems relying on dedicated
resources for the entire surveillance period existed both before and
after the passage of CALEA. Neither commenter suggests that they no
longer exist. In any event, as we stated in the Supplement, the Final
Notice is intended to be technology neutral. It provides carriers with
an estimated number or surveillances, and relies upon them to implement
an appropriate method of accommodating them. Nothing in the Final
Notice would
[[Page 75583]]
preclude a carrier from meeting the requirements by using a ``dial-
out'' or any other non-dedicated-resource method. Indeed, such systems
have substantial benefits for law enforcement and the carrier, and they
largely eliminate any incremental burden or expense which might be
imposed on a carrier in accommodating multiple same-day surveillances
in accordance with the capacity requirements.
Both commenters conclude with a contention that new capacity
requirements should be established, and that, instead of using counties
or market service areas, the FBI should state requirements by city
(MCI, 5) or by switch (USTA, 8). These points are well beyond the scope
of the issues addressed in the Supplement and will not be further
considered herein.
B. Comments Regarding the Breakdown of Capacity Requirements by Type of
Surveillance
Only Verizon and USTA submitted any comments regarding the FBI's
proposed breakdown of capacity requirements by type of surveillance.
Verizon supports the FBI's proposal, observing that it ``usefully
refines the capacity requirements.'' (Verizon, 1).\2\ We agree. USTA
states that it opposes the breakdown, but appears to misconstrue the
FBI's proposal.
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\2\ Verizon also comments that the Supplement ``does not provide
needed guidance concerning the manner in which carriers should
distribute the countywide CALEA capacity among multiple switches
that serve that county.'' (Verizon, 1). USTA makes a similar
comment. (USTA, p. 8). The per-switch distribution of the capacity
requirements is beyond the scope of the Supplement. However we
observe that the FBI has already provided guidance as to this issue
in the Final Notice of Capacity, noting in particular that ``the
interception capacity requirement within each wireline or wireless
geographic area can be applied and capacity distributed at the
discretion of the carrier.'' See 63 FR 12232.
---------------------------------------------------------------------------
USTA first states that: ``the FBI's proposed formula sounds
mathematically logical, [but] it is not based on concrete evidence to
support its assumption that the proportion of communications
interceptions declines as the total number of interceptions rises.''
(USTA, p. 7). Based on that contention, USTA concludes that ``where
criminal activity is least likely to occur, carriers should be required
to have less capacity for electronic surveillance.'' (USTA, p. 8).
We have considered these points and concluded that they reflect a
misunderstanding of the proposed breakdown. As explained in the
Supplement, the FBI sought to determine what portion of the capacity
requirements stated in the Final Notice of Capacity represented
communications interceptions, rather than other types of surveillance.
See 68 FR 68118. As further explained, we made such determination
through a re-examination of the same survey data used by the FBI to
form the capacity requirements in the Final Notice of Capacity. Id.
That examination revealed that the ``percentage of communications
interceptions tended to decrease as the total historical experience
increased.'' Id. In other words, we found by reviewing the data that as
the total number of surveillances that had historically been conducted
within a region increased, the proportion of that number that
represented communications interceptions (rather than pen registers and
traps and traces) decreased. Hence, USTA's comment that the FBI's
conclusion was ``not based on concrete evidence'' is incorrect; it was
appropriately based on the evidence of the same survey data from which
the capacity requirements published in the Final Notice were derived.
Moreover, USTA's comment that carriers should generally have lower
capacity requirements ``where criminal activity is least likely to
occur'' is inapposite. CALEA does not direct the FBI to determine a
likelihood of criminal activity in forming capacity requirements.
However, because the requirements were based on a historical survey of
the number of surveillances occurring within specific geographic areas,
the capacity requirements are in fact lower in regions where the
historical number of surveillances is lower. As explained in the Final
Notice, and in the Supplement, the FBI published the capacity
requirements based upon a survey of the historical number of
interceptions conducted within certain geographic areas. Geographic
areas where the historical number of interceptions were high, generally
(and quite naturally) resulted in relatively higher capacity
requirements. For example, the published historical experience figure
for New York, New York is 318, and the actual capacity requirement is
401. This may be compared with the historical experience figure for
Greene County, New York, where relatively few surveillances were
conducted during the survey period. The historical experience figure
for Greene County is 2, and its actual capacity requirement is 3.
Nothing in the Supplement, nor in the proposed breakdown, changes this
relationship between the number of historical surveillances and the
capacity requirement. Rather, the proposed breakdown provides
additional guidance to carriers as to the maximum number of
communications interceptions contained within capacity requirements.
III. Conclusion
For the reasons stated in the Supplement for the Purpose of
Responding to Remand, and having considered the comments submitted in
response thereto, the FBI hereby adopts the Supplement as final,
without change.
IV. Applicable Administrative Procedures and Executive Orders
A. Initial Regulatory Flexibility Analysis
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. requires the
preparation of an initial regulatory flexibility analysis whenever an
agency is required by law ``to publish general notice of proposed
rulemaking for any proposed rule.'' 5 U.S.C. 603(a). This publication
provides our response to the comments received on the Supplement for
Purposes of Responding to Remand [Supplement] which was published
pursuant to instructions of the Court of Appeals in order to provide
further explanation and guidance regarding the Final Notice of Capacity
issued pursuant to CALEA, 47 U.S.C. 1003. In this publication, we are
not republishing either the Final Notice nor the Supplement. Therefore,
we are not changing either the Final Regulatory Flexibility Analysis
provided with the Final Notice nor the estimates of the number of small
entities provided in the Supplement. We are not republishing the Final
Notice, nor changing the existing numerical capacity requirements
stated therein. We therefore find that there will be no significant
economic impact on small businesses as a result of this publication.
The FBI is unaware of any rules which would overlap, duplicate or
conflict with this publication or the statements therein.
B. Executive Order 12866: Regulatory Planning and Review
This publication has been drafted and reviewed in accordance with
Executive Order 12866. The FBI has determined that this publication
does not constitute a ``significant regulatory action'' in accordance
with that Order. In particular, we had already determined that the
Final Notice of Capacity and the Supplement did not meet the criterion
for a ``significant regulatory action'' and that they would not result
in an annual impact on the economy in excess of $100,000,000, nor would
they economically impact State, local or
[[Page 75584]]
tribal governments. 63 FR 12218, 12220; 68 FR 68112, 68120. This
publication does not alter the economic analysis contained in either
the Final Notice or the Supplement.
C. Executive Order 13132: Federalism
This publication will not have a substantial direct effect of the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132, it is determined that this publication does not have any
federalism implications that warrant preparation of a federalism impact
statement.
D. Executive Order 12988: Civil Justice Reform
This publication meets the applicable standards set forth in
sections 3(a) and 3(b) of Executive Order 12988, Civil Justice Reform.
E. Unfunded Mandates Reform Act of 1995
We determined in both the Final Notice of Capacity and in the
Supplement that neither would result in the expenditure by State, local
or tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, nor would they significantly or
uniquely affect small governments. This publication only provides
further a response to comments received on the Supplement and adopts
the Supplement as final without change. Therefore, no actions deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995, 2 U.S.C. 1532(a).
F. Small Business Regulatory Enforcement Fairness Act of 1996
This publication is not a major rule as defined by the Small
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. We
determined in both the Final Notice of Capacity and in the Supplement
that neither would: have an annual effect on the economy of
$100,000,000 or more; cause a major increase in costs or prices; or
result in a significant adverse effect on competition, employment,
investment or productivity, and innovation, or on the ability of the
United States-based companies to compete with foreign-based companies
in domestic and export markets. This publication only provides further
a response to comments received on the Supplement and adopts the
Supplement as final without change.
G. Paperwork Reduction Act
This publication contains no information collection or record-
keeping requirements under the Paperwork Reduction Act, 44 U.S.C. 3501
et seq.
Dated: November 15, 2006.
Elaine N. Lammert,
Deputy General Counsel, Federal Bureau of Investigation.
[FR Doc. E6-21426 Filed 12-14-06; 8:45 am]
BILLING CODE 4410-02-P