18 December 1998 Source: http://www.access.gpo.gov/su_docs/aces/aaces002.html ----------------------------------------------------------------------- [Federal Register: December 18, 1998 (Volume 63, Number 243)] [Notices] [Page 70160-70162] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr18de98-118] ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE Federal Bureau of Investigation Implementation of Section 104 of the Communications Assistance for Law Enforcement Act: Telecommunications Services Other Than Local Exchange Services, Cellular, and Broadband PCS AGENCY: Federal Bureau of Investigation, DOJ. ACTION: Notice of inquiry. ----------------------------------------------------------------------- SUMMARY: The purpose of this Notice of Inquiry (NOI) is to present certain telecommunications carries and all other interested parties with an opportunity to provide input to the Federal Bureau of Investigation (FBI) as it develops law enforcement's capacity requirements for services other than local exchange, cellular, and broadband personal communications services (PCS). The Communications Assistance for Law Enforcement Act (CALEA) mandate that the Attorney General, on behalf of all law enforcement, provide capacity requirements for the actual and maximum number of interceptions (of call content and/or call-identifying information) that telecommunications carriers may be required to effect in support of law enforcement's electronic surveillance needs. This NOI is soliciting information on and suggestions for developing reasonable methodologies for characterizing capacity requirements for telecommunications services other than local exchange services, cellular, and broadband PCS. Such services include, but are not limited to: traditional paging, two-way paging, narrowband PCS, mobile satellite services (MSS), specialized mobile radio (SMR) and enhanced specialized mobile radio (ESMR), national and multi-rate services, asynchronous transfer mode (ATM), X.25, frame relay, airplane telephony, and railroad telephony. DATES: Comments must be received on or before February 16, 1999. ADDRESSES: Comments should be submitted to the Federal Bureau of Investigation, CALEA Implementation Section, Attention: Notice of Inquiry, 14800 Conference Center Drive, Suite 300, Chantilly, VA 20151. All comments will be available for review at the FBI's Freedom of Information and Privacy Act (FOIPA) Reading Room located at FBI Headquarters, 935 Pennsylvania Avenue, NW, Washington, DC 20535. To review the comments, interested parties should contact the FBI's FOIPA Reading Room staff, telephone number (202) 324-7510, to schedule an appointment (48 hours advance notice required). While printed comments are welcome, commenters are encouraged to submit their responses on electronic media. Electronic documents must be in WordPerfect 6.1 (or earlier) or Rich Text Format (RTF) format. Comments must be the only file on the 3.5 inch disk. In addition, all electronic submissions must be accompanied by a printed sheet listing the name, company or organization name address, and telephone number of an individual who can replace the disk should it be damaged in transit. [[Page 70161]] SUPPLEMENTARY INFORMATION: I. Background A. Purpose of CALEA On October 25, 1994, President Clinton signed into law the Communications Assistance for Law Enforcement Act (CALEA).\1\ Its objective is to make clear a telecommunications carrier's duty to cooperate with law enforcement with regard to electronic surveillance- related interceptions for law enforcement purposes.\2\ CALEA was enacted to preserve law enforcement's ability (pursuant to court order or other lawful authorization) to access call content and call- identifying information in an ever-changing telecommunications environment. On March 3, 1995, the Attorney General delegated to the Director of the FBI, or his designee(s) the authority to carry out the responsibilities conferred upon the Attorney General in Title I of CALEA.\3\ The FBI is implementing CALEA on behalf of all Federal, state, and local law enforcement agencies. --------------------------------------------------------------------------- \1\ Pub. L. 103-414, 47 U.S.C. 1001-1010. \2\ For purposes of this NOI, the word ``interception'' is used to refer to either the interception of call content or call- identifying information. \3\ See 28 CFR 0.85(o). --------------------------------------------------------------------------- In 1968, when Congress statutorily authorized court-ordered electronic surveillance, there were no technological limitations on the number of call content or call-identifying interceptions that could be conducted.\4\ However, the onset of new and advanced services has begun to erode the telecommunications industry's ability to support law enforcement's court-authorized interception needs. In an effort to preserve the ability to conduct interceptions, Congress determined that technological solutions must be employed to meet the needs of law enforcement through the provision of new and advanced services. --------------------------------------------------------------------------- \4\ See Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. 2510-2522. --------------------------------------------------------------------------- The intent of CALEA is to define and clarify the level of assistance required from the telecommunications industry. CALEA does not alter or expand law enforcement's fundamental statutory authority to intercept communications. It simply seeks to ensure that, after law enforcement obtains legal authority, telecommunications carriers will have the necessary technical ability to fulfill their statutory obligation to provide law enforcement with the technical assistance necessary to carry out the court-authorized intercepts. B. Capacity Notice Mandate Because many future interceptions will be effected through equipment controlled by telecommunications carriers, section 104 of CALEA requires the Attorney General to provide carriers with information they will need (a) to be capable of accommodating the actual number of simultaneous interceptions at specific geographic locations that law enforcement may need to conduct, and (b) to size and design their networks to accommodate the maximum number of simultaneous interceptions at specific geographic locations that law enforcement may need to conduct at some future date. These two information elements are referred to in CALEA as ``actual'' and ``maximum'' capacity requirements. In accordance with section 104 of CALEA, the Attorney General must provide notice of estimated future actual and maximum capacity requirements. The statute defines these requirements as follows: For actual capacity: The actual number of communication interceptions, pen registers, and trap and trace devices, representing a portion of the maximum capacity, that the Attorney General estimates that government agencies authorized to conduct electronic surveillance may conduct and use simultaneously by the date that is 4 years after the date of enactment of CALEA.\5\ --------------------------------------------------------------------------- \5\ See 47 U.S.C. 1003(a)(1)(A). --------------------------------------------------------------------------- For maximum capacity: The maximum capacity required to accommodate all of the communication interceptions, pen registers, and trap and trace devices that the Attorney General estimates that government agencies authorized to conduct electronic surveillance may conduct and use simultaneously after the date that is 4 years after the date of enactment of CALEA.\6\ --------------------------------------------------------------------------- \6\ See 47 U.S.C. 1003(a)(1)(B). Under section 104 of CALEA, telecommunications carriers must be in compliance with capacity requirements 3 years after the effective date of a Final Notice of Capacity for a specific telecommunications service. Although the Attorney General must estimate the actual number of call content interceptions, pen registers, and trap and traces that a carrier may be required to accommodate simultaneously at specific geographic locations by that date, the estimates should not be interpreted to mean the number of interceptions that law enforcement intends to, or is planning to, conduct.\7\ The number of interceptions that will actually be needed will be determined by active law enforcement investigations requiring authorized electronic surveillance. --------------------------------------------------------------------------- \7\ 47 U.S.C. 1003(b)(1). --------------------------------------------------------------------------- Maximum capacity, on the other hand, is a capacity level that telecommunications carriers must be able to accommodate ``expeditiously'' if law enforcement requires an increase in the future. The term ``expeditious'' specifically refers to Section 104 capacity requirements regarding incremental expansion up to the maximum capacity.\8\ It should not be confused with ``expeditious access'' to call content and call-identifying information as used in section 103 of CALEA, which pertains to the assistance capability requirements. Because CALEA does not define the term ``expeditiously,'' this NOI solicits from interested parties suggestions for the appropriate length of time to be designated for incremental expansion to the maximum capacity. --------------------------------------------------------------------------- \8\ 47 U.S.C. 1003(b)(2). --------------------------------------------------------------------------- Law enforcement has interpreted maximum capacity chiefly as a requirement that telecommunications carriers will follow to determine a capacity ceiling. This ceiling is intended to provide telecommunications carriers with a stable framework for cost- effectively designing future capacity into their networks. It also provides for accommodating future interception-related ``worst-case scenarios.'' Establishing the maximum capacity will allow telecommunications carriers to assist law enforcement during serious, unpredictable emergencies requiring an unusual level of interception activity. C. Final Notice of Capacity for Local Exchange, Cellular and Broadband PCS Services On March 12, 1998, the FBI published in the Federal Register\9\ a Final Notice of Capacity. While CALEA applies to all telecommunications carriers,\10\ the March 12, 1998 Final Notice of Capacity covered only those telecommunications carriers offering local exchange services and certain commercial mobile radio services, specifically cellular service and broadband PCS.\11\ Exclusion from the March 12, 1998 Final Notice of Capacity of other telecommunications carriers that have services currently deployed or anticipate deploying services in the near term, does not exempt them from the statutory obligations of CALEA. Thus, the purpose of this NOI is to give telecommunications carriers providing other telecommunications services covered by CALEA an opportunity to provide input to the FBI as it develops [[Page 70162]] law enforcement's capacity requirements. --------------------------------------------------------------------------- \9\ 63 FR 12218 (March 12, 1998). \10\ Telecommunications carrier as defined by 47 U.S.C. 1001(8). \11\ Specifically, it refers to those services operating in the licensed portion of the 2 GHz band of the electromagnetic spectrum, from 1850 MHz to 1990 MHz. --------------------------------------------------------------------------- II. Capacity Requirements for Telecommunications Services Other Than Local Exchange Services, Cellular, and Broadband PCS Given the dynamic nature of the telecommunications industry and the diverse nature of telecommunications services, the FBI has determined that it is in the best interest of all parties concerned that it solicit input from the telecommunications industry and other interested parties regarding the development of reasonable methodologies for characterizing capacity requirements for telecommunications services other than local exchange, cellular, and broadband PCS, prior to instituting a rulemaking proceeding.\12\ The FBI is committed to the consultative process and to maintaining an on-going dialogue with the telecommunications industry. The FBI seeks to draw upon the expertise of industry to gain an understanding of the range of options available for expressing capacity requirements for various telecommunications services. Those services yet to be address by a notice of capacity include, but are not limited to: --------------------------------------------------------------------------- \12\ This action is considered a rulemaking under the Administrative Procedure Act, 5 U.S.C. Sec. 553. --------------------------------------------------------------------------- Traditional paging, Two-way paging, Narrowband PCS, MSS, SMR and ESMR, National and multi-rate services, Asynchronous transfer mode (ATM), X.25, Frame relay, Airplane telephony, and Railroad telephony. Any telecommunications carriers whose services were not covered in the March 12, 1998 Final Notice of Capacity but are subject to CALEA, are strongly encouraged to comment on this NOI. Commenters are asked to address the requirements regarding the basis for capacity notices set forth in CALEA section 104(a)(2): The notices issued. * * * (A) may be based upon the type of equipment, type of service, number of subscribers, type or size of carrier, nature of service area, or any other measure; and (B) shall identify, to the maximum extent practicable, the capacity required at specific geographic locations. Commenters should address approaches that are best suited to their specific services, with emphasis upon the capacity needed on a geographic basis. However, the FBI recognizes that certain services may not lend themselves to geographic expression, and therefore also encourages comments on alternative means of characterizing capacity. Commenters are also asked to address any other service-specific capacity issues that the FBI should take into consideration when developing capacity methodologies. While different services will require different methods for characterizing capacity, commenters should review the methodology for determining capacity requirements set forth in the March 12, 1998 Final Notice of Capacity before preparing comments in this proceeding.\13\ Also, because CALEA does not define the term ``expeditiously,'' this NOI solicits from interested parties suggestions for the appropriate length of time to be designated for incremental expansion to the maximum capacity. --------------------------------------------------------------------------- \13\ See 63 FR 12218, and 12224-12227 (March 12, 1998). --------------------------------------------------------------------------- The FBI is committed to giving all interested parties the opportunity for meaningful participation in CALEA and will continue to work with the telecommunications industry to develop capacity methodologies and notices of capacity for all telecommunications services subject to CALEA.\14\ --------------------------------------------------------------------------- \14\ The FBI is acting in accordance with the rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. 553. --------------------------------------------------------------------------- This is a Notice of Inquiry proceeding where ex parte communications are permitted pursuant to 28 CFR 50.17. [47 U.S.C. Secs. 1001-1010] Dated: December 15, 1998. Louis J. Freeh, Director, Federal Bureau of Investigation, Department of Justice. [FR Doc. 98-33634 Filed 12-17-98; 8:45 am] BILLING CODE 4410-02-M