[Congressional Record Volume 142, Number 18 (Friday, February 9, 1996)]
[Senate]
[Pages S1166-S1171]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         RELEASE OF FBI REPORT ON FUTURE WIRETAP CAPACITY NEEDS

  Mr. LEAHY. Mr. President, we took an important step in the last 
Congress to preserve law enforcement's wiretapping tool and increase 
privacy protection for our telephone and computer communications by 
passing the Communications Assistance for Law Enforcement Act. This law 
expanded privacy protection to cordless telephones, restricted the 
ability of law enforcement to obtain transactional information from e-
mail messages, and improved the privacy of mobile phones by expanding 
criminal penalties for stealing the service from legitimate users.
  This new law also imposed new requirements to ensure that court 
orders for electronic surveillance can be carried out, rather than 
stymied by new technologies used on our telephone networks.
  Significantly, these new requirements for our Nation's telephone 
networks were accompanied by guidelines designed to bring public 
oversight and accountability to the process of implementing them. For 
the first time, decisions on how new and existing telecommunications 
systems will remain accessible to government surveillance must be made 
in the sunshine of public scrutiny.
  Thus, the new law requires for the first time that law enforcement's 
demands regarding the number of wiretap, pen register, and other 
surveillance orders that telephone companies must be able to service 
simultaneously, are published in the Federal Register and scrutinized 
in a public procedure.
  In compliance with this new requirement, the FBI published in the 
Federal Register on October 16, 1995, a proposed notice setting forth 
its capacity demands. According to the proposed notice, these capacity 
demands were predicated upon a historical baseline of electronic 
surveillance activity and an analysis of that activity. Yet, the 
Federal Register notice did not include publication of this underlying 
information.
  Shortly after the notice was issued, I wrote to the FBI Director 
requesting copies of this information, and urging him to release the 
information to the public to ensure the fullest dissemination of the 
information.
  I am aware that the comments filed by the deadline on January 16, 
1996, in response to the proposed notice on behalf of civil liberties 
groups, telephone companies, and cellular companies have criticized the 
proposed notice for failing to disclose the supporting data for the 
capacity demands. As one set of comments filed by the Center for 
Democracy and Technology and the Center for National Security Studies 
noted, ``it is impossible to say whether or not the capacity 
requirements proposed in the notice are justified'' without the 
supporting data. 

[[Page S1167]]

  The FBI has now provided me with a 13-page report explaining how they 
collected information about past law enforcement surveillance activity 
from Federal and State court offices, State attorneys general offices, 
and over a thousand telecommunications carriers. This report also 
describes the method the FBI used to analyze this information and 
figure out how much wiretap capacity law enforcement would need for the 
foreseeable future and up to 10 years from now in three broad 
categories of geographic areas.
  I fully appreciate the amount of hard work that went into collecting 
this critical data and doing the analysis. Indeed, this is the first 
time that law enforcement has ever been required to estimate its future 
surveillance activity and the demands that will be made on 
telecommunications carriers. This is also the first time that this 
information has ever been required to be made public.
  I am pleased to make this report available for public dissemination. 
It does not identify which geographic areas fall into which of the 
three different categories with differing capacity requirements. Thus, 
it does not tell us whether Vermont is in category I, where the 
greatest level of interception activity has occurred and is likely to 
occur in the future, or in category III, where the number of law 
enforcement wiretaps have been low or nonexistent. Telecommunications 
carriers doing business in Vermont and Vermonters will want to know 
which category we fall into.
  The FBI has assured me that they are in the process of preparing two 
additional documents that will explain the proposed capacity notice in 
greater depth. I look forward to examining those two additional 
documents upon their release by the FBI.
  The public process set up in the new law is working. I commend the 
FBI Director for his efforts to fulfill the public accountability 
provisions of the law by making available this report and future 
reports on the capacity requirements.
  Since these reports were not available prior to the deadline for 
comments on the original proposed notice, however, I would urge the FBI 
to consider issuing a revised or supplemental proposed notice to give 
interested parties an opportunity to comment on the proposed capacity 
demands with the benefit of this new information.
  Mr. President, I ask unanimous consent that the report be printed in 
the Record.
  There being no objection, the report was ordered to be printed in the 
Record, as follows:

Information Concerning Implementation of the Communications Assistance 
                    for Law Enforcement Act [CALEA]


                               Background

       CALEA was enacted to preserve law enforcement's ability, 
     pursuant to court order or other lawful authorization, to 
     access communications (content) and associated call-
     identifying information in an ever-changing 
     telecommunications environment. Because many interceptions 
     \1\ in the future will be initiated through equipment 
     controlled by carriers, CALEA obligates the Attorney General 
     to provide telecommunications carriers with information they 
     will need (a) to adequately size and design their networks to 
     accommodate the maximum number of simultaneous interceptions 
     that law enforcement potentially might conduct after October 
     25, 1998, and (b) to be capable of accommodating the actual 
     number of simultaneous interceptions law enforcement 
     potentially might conduct as of October 25, 1998. The CALEA 
     specifically refers to two levels of capacity, maximum and 
     actual.
     Footnotes at end of article
---------------------------------------------------------------------------
       CALEA requires the Attorney General to provide a notice of 
     the maximum capacity required to accommodate all of the 
     communication interceptions, pen registers, and trap 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 enactment (i.e., after October 25, 1998). The Attorney 
     General must also provide a notice of the actual number of 
     communication interceptions, pen registers, and trap 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 as of October 1998.\2\


                            Maximum Capacity

       Unlike actual capacity, CALEA indicates that the maximum 
     capacity applies to a time, not specified, after the date 
     that is 4 years after the date of CALEA's enactment. The 
     maximum capacity has been interpreted as chiefly a design 
     requirement for telecommunications carriers that will be 
     utilized to size and define an upper bound capacity ceiling 
     for the mid-term to intermediate future (i.e., 1998-2004), as 
     discussed in more detail below. This ceiling is intended to 
     provide carriers with certainty and stability, as well as 
     with a framework for cost effectively designing and 
     engineering future capacity requirements into their networks.
       As CALEA makes clear, the maximum capacity is in no way 
     synonymous with actual capacity (i.e., the interception 
     capacity that law enforcement may actually use as of October 
     25, 1998). Rather, maximum capacity is viewed as relating to 
     a longer term, more enduring design requirement that would 
     serve as a defined technological bound to interception 
     activity, but yet would provide room for expeditiously 
     accommodating certain future interception-related ``worst 
     case scenarios.'' For example, it would be impossible for 
     law enforcement to predict unusual, anomalous, but 
     nonetheless very serious or violent events such as those 
     associated with certain acts of terrorism or extreme 
     instances of drug-trafficking or organized crime activity. 
     Maximum capacity provides a safety-net that would enable 
     telecommunications carriers to expeditiously respond to 
     serious, unpredictable, emergencies that require very 
     unusual levels of interception capacity.


                            Actual Capacity

       Under CALEA, estimates of actual capacity are to apply to 
     all simultaneous interception activity that may be conducted 
     by the date that is 4 years after the date of enactment of 
     CALEA. CALEA makes clear that actual capacity represents only 
     a portion of the maximum capacity. Actual capacity thus 
     pertains to the amount of interception activity that 
     potentially may be needed when many of CALEA's requirements 
     are scheduled to take effect in October 1998. Consequently, 
     when viewing the maximum and actual capacity levels set forth 
     in the Initial Capacity Notice, realistically only the actual 
     capacity estimates should be construed as in any way 
     reflecting the amount of simultaneous interception activity 
     that potentially may be conducted by law enforcement in any 
     geographic area as of October 1998.


                          Methodology Overview

       The CALEA mandate which obligates the Attorney General to 
     estimate future capacity marks the first time (a) that 
     information has been required to be provided to carriers in 
     order for them to properly design and size future networks 
     with reference to interception activity; and (b) that the 
     entire law enforcement community has been required to project 
     its collective potential future interception needs, thereby 
     in effect placing possible technological limitations on its 
     lawful authority to conduct electronic surveillance. This 
     circumstance, as viewed by the law enforcement community, 
     obviously generates great and legitimate concern, because 
     historically telephone technology placed no constraints on 
     law enforcement's court ordered electronic surveillance 
     authority. If not implemented with care, CALEA could have the 
     unintended effect of potentially placing restrictions on the 
     lawful use of electronic surveillance authority. Thus, if law 
     enforcement errs by underscoping its potential, legitimate, 
     and lawful interception needs, effective law enforcement will 
     be hampered and, more importantly, the public safety will be 
     jeopardized.
       The FBI, which is implementing many of the responsibilities 
     conferred upon the Attorney General by CALEA, was required to 
     issue the capacity notice. In order to meet this obligation, 
     we proceeded by employing a rigorous, comprehensive 
     methodology to acquire critically needed information and to 
     establish analytic tools for determining the simultaneous 
     interception activity of the recent past and for estimating 
     future maximum and actual capacity.
       The methodology used was intended to take into 
     consideration the concerns of the parties principally 
     affected by CALEA. On the one hand, CALEA provides law 
     enforcement with an opportunity and means to ensure that its 
     future electronic surveillance needs can be met. On the 
     other hand, CALEA presents an opportunity and means for 
     telecommunications carriers to understand the nature and 
     extent of their obligations to accommodate law 
     enforcement's electronic surveillance needs and to do so 
     in a way that will not be unduly burdensome or excessive. 
     Law enforcement's approach and perspective regarding its 
     electronic surveillance needs relate to its mission to 
     combat serious crime, acts of terrorism, and acts of 
     violence. Traditionally, this mission has been tied to law 
     enforcement agencies' geographically-based jurisdiction 
     and associated jurisdictional legal authority. 
     Telecommunications carriers' approach and perspective 
     regarding law enforcement's electronic surveillance needs, 
     however, chiefly relate to the effect such needs may have 
     on particular components within their systems that are 
     used to serve subscribers within a given market (i.e., 
     switches and other network components).
       As a goal, law enforcement sought to harmonize the 
     different approaches and perspectives of these parties in its 
     methodology. The methodology sought to produce a result that 
     acknowledged and factored in the interrelationship between 
     the geographic, jurisdictional contours of law enforcement 
     interception activity and the geographic service areas 
     covered by the carrier switching facilities that will be 
     likely used to provide interception access. By identifying 
     key pieces of 

[[Page S1168]]
     data associated with these approaches and perspectives, we were able to 
     formulate and then analyze past interception activity in 
     terms that enabled us to establish one of the key components 
     (one pertaining to past peak levels of interception activity 
     in localities of various sizes) in an equation leading to an 
     estimate of future interception capacity. The other key 
     component (one pertaining to projected growth) was derived 
     from a statistical model that included a number of variables 
     reasonably believed to predict potential future capacity 
     bounds and potential future interception needs. Once the 
     projections were made to estimate future capacity needs, the 
     results were reviewed and adjusted to ensure reasonableness 
     before publishing the results in the Initial Capacity Notice.
       By presenting capacity levels in the Initial Capacity 
     Notice with reference to engineered capacity (discussed 
     below), the FBI intended to express interception capacity in 
     an understandable fashion as a percentage of a carrier's 
     switch or other network component capacity. This approach was 
     intended to enable carriers to tailor their technological 
     responses to law enforcement's potential interception needs 
     within specific types of geographic areas. The following 
     discussion highlights the methodological steps used to arrive 
     at the actual and maximum capacity figures published in the 
     Initial Capacity Notice.


      part one: deriving key data from past interception activity

       As a first step, we sought to establish a baseline of past 
     simultaneous interception activity. Information concerning 
     the actual number of all types of simultaneous interceptions 
     occurring throughout the United States in the recent past was 
     collected. Such information, needed to establish the 
     baseline, had never before been collected and did not exist 
     in a single repository. Amassing this detailed and extremely 
     sensitive information required an unprecedented and time-
     consuming effort on the part of law enforcement. It involved 
     identifying sources from which accurate information could be 
     retrieved in an efficient and effective manner. 
     Specifically, we sought to identify sources that could 
     provide the exact number of all types of interceptions (to 
     include call content, pen register, and trap and trace) 
     performed by all federal, State, and local law enforcement 
     agencies, in terms of the actual number of telephone lines 
     \3\ intercepted at each locality.
       To obtain specific line-related information regarding past 
     simultaneous electronic surveillance activity, records of 
     interception activity were acquired from telecommunications 
     carriers, law enforcement officials, and most importantly, 
     from the Federal and State Clerks of Court's offices--the 
     official repository for all interceptions conducted 
     simultaneously between January 1, 1993 and March 1, 1995, for 
     all geographic locations. Specifically, highly sensitive 
     interception information pertaining to each interception 
     start/end dates, and to area code and exchange was collected. 
     The period January 1, 1993 to March 1, 1995 was chosen in 
     order to obtain recent interception information that was 
     reasonably retrievable given the time constraint of one year 
     imposed by the CALEA with regard to publishing a capacity 
     notice.
       Approximately 1500 telecommunications carriers (those 
     serving the majority of subscribers in the U.S., and 
     representing the largest of the wireline and cellular 
     telephone companies (as of March 1995)) were requested to 
     provide information that would identify where and how many 
     interceptions had occurred within their networks during the 
     period of study. Acquisition and examination of sensitive 
     electronic surveillance records maintained pursuant to 
     statute under seal with the Clerks of Court offices was 
     pursued through two separate efforts. All Federal court order 
     information was collected pursuant to special court orders 
     directing the unsealing of interception court orders for the 
     limited purpose of enabling the Attorney General/FBI to 
     comply with the capacity notice obligation. State and local 
     law enforcement information was obtained through the State 
     Attorneys General (AG) offices. Each State AG was requested 
     to coordinate the collection of interception information 
     within the AG's respective State.
       By reviewing the data collected, the number of simultaneous 
     interceptions that had occurred within switching facilities 
     was identified throughout the country during the study 
     period. One of the key pieces of relevant information was the 
     highest number of interceptions that had ever occurred 
     simultaneously within any telecommunications carrier's 
     switch.\5\
       For the years studied, the highest number of simultaneous 
     interceptions occurring within any one switch in the United 
     States was 220; that is, 220 pen register, trap and trace 
     and/or call content interceptions were active at the same 
     time within a particular switch. Further analysis revealed 
     that the 220 interception number far exceeded the number of 
     simultaneous interceptions conducted in other high activity 
     switches and was due to a single unusual occurrence. The 
     switch that had the second highest level of simultaneous 
     activity supported 120 pen register, trap and trace and/or 
     call content interceptions.
       The distribution of baseline simultaneous interception 
     activity by switch was varied. Among switches which had 
     supported interceptions during the period studied, there was 
     a broad and varied distribution of simultaneous interceptions 
     ranging from 1 to 120. Switches with the greatest levels of 
     interception activity frequently existed in urban areas. 
     Switches with lower levels of interception activity existed 
     across a variety of geographic areas, encompassing urban, 
     suburban, and rural areas.
       The review of the baseline of interception activity yielded 
     certain key data on simultaneous interceptions for specific 
     switching systems, but law enforcement usually approaches 
     crime within the context of geographic or jurisdictional 
     areas. The next analysis challenge was to associate the 
     baseline simultaneous interception data on specific switches 
     with law enforcement's need to express requirements relative 
     to geographic areas. To do this, law enforcement sought to 
     identify geographic boundaries that could provide common 
     reference points between law enforcement and 
     telecommunications carriers.
       A number of geographic boundaries which define service 
     areas of telecommunications carriers were considered (e.g., 
     State lines, local access transport areas (LATA), 
     metropolitan statistical areas (MSA), rural service areas 
     (RSA), and major and basic trading areas (MTA, BTA)). 
     However, in each case, these boundaries did not provide a 
     good match with defined law enforcement areas. Law 
     enforcement jurisdictional legal authority in a great number 
     of cases is defined by county boundaries (i.e., for local law 
     enforcement agencies). County boundaries rarely change and 
     are not disputable. In most cases, a group of counties are 
     encompassed by the boundaries that define a 
     telecommunications carrier's service area. Consequently, 
     county boundaries were used as the common reference tool in 
     formulating an analysis for future capacity.
       From the baseline of interception activity, interception 
     data was aggregated for a group of specific switches by 
     county. Switches were assigned to counties based on their 
     geographic location. The data can be divided into their 
     different levels (or categories) or interception activity: 
     high, moderate, and low.
       As part of the consultative process with the 
     telecommunications carriers, law enforcement understood that 
     one of the primary carrier concerns with regard to capacity 
     was that each switch in a carrier's network should not be 
     held to the same requirement for capacity levels. The 
     carriers had indicated generally that although CALEA requires 
     the Attorney General to estimate future capacity sizings and 
     to estimate future potential interception activity that may 
     occur in their network, every attempt should be made by law 
     enforcement to express its needs in accordance with the 
     variability of interceptions that had occurred in the past. 
     Recognizing this, we chose to define law enforcement's 
     potential future interception needs using categories and not 
     just one absolute number that would apply without regard to 
     the often varied nature of interceptions in a carrier's 
     geographic service area.
       As a result of considering the relative relationships 
     between law enforcement and telecommunications carriers 
     geographic areas, it was determined that three separate 
     categories for stating capacity requirements should be 
     created. The use of categories permitted capacity 
     requirements to be stated in a way that reasonably reflected, 
     and was responsive to, law enforcement interception needs 
     without unduly burdening all carriers with the same level of 
     capacity or requiring a particular carrier to provide the 
     same capacity level everywhere in its network. As alluded to 
     in the Initial Capacity Notice, Category I represents a small 
     number of geographic areas where the greatest level of 
     interception activity typically has occurred and is likely to 
     occur. Category II also represents a relatively small number 
     of geographic areas, which consist of some urban and suburban 
     areas. Category III represents the vast majority of areas 
     where electronic surveillance activity has historically been 
     low or nonexistent, principally in rural and many suburban 
     areas.
       With regard to Category III, as the nation moves toward the 
     future, law enforcement must have the capability to conduct a 
     minimum level of electronic surveillance in any locality, 
     regardless of previous levels of criminal activity or prior 
     levels of electronic surveillance activity. Terrorism, drug 
     trafficking, and violent crimes are constant and 
     unpredictable threats to the public in all localities, as 
     evidenced by the Oklahoma City bombing in April 1995. 
     Consequently, unlike Categories I and II, which are defined 
     principally with reference to past levels of electronic 
     surveillance activity, Category III constitutes a minimum 
     interception capacity for any location in which law 
     enforcement may need an interception capability in order to 
     protect the public and effectively enforce the law.
       Once the geographic areas could be generally (but only 
     tentatively) associated with each category, the historic 
     baseline of interception activity for these areas could be 
     used as a way of defining the distinct levels of past 
     electronic surveillance activity. For the Category I level, 
     as noted above, the highest number of simultaneous 
     interceptions from a switch was 120. Our analysis also 
     determined that within the Category II level the highest 
     number of simultaneous interceptions from a switch was 42.


             the use of percentages and engineered capacity

       Law enforcement considered it appropriate and prudent to 
     express capacity requirements in the Initial Capacity Notice 
     in 

[[Page S1169]]
     terms of a percentage rather than as a fixed number for several 
     reasons. First, percentages are very appropriate, if not 
     essential, with regard to new service providers, new 
     switches, new services, and new technologies. If absolute 
     numbers were set forth, the introduction of new basic 
     service, as well as more advanced services and features, 
     could be impeded--a prospect that is unacceptable to either 
     the Congress, law enforcement, or the telecommunications 
     industry. Second, percentages allow capacity requirements to 
     adjust slightly to a changing subscriber base as it increases 
     or decreases over time.
       To enable carriers to apply the percentages to the affected 
     systems in their networks properly, capacity level 
     percentages were tied to engineered capacity. Engineered 
     capacity was referred to in the Initial Capacity Notice as 
     the maximum number of subscribers that can be served by a 
     carrier's equipment, facilities, or service. In the main, a 
     carrier's switching facility was the key network component 
     associated with this foregoing terminology. With regard to 
     the highest level of simultaneous interception activity in 
     the baseline data with regard to Category I (120), the switch 
     associated with that interception activity was one that 
     typically served an average of 35,000 subscribers. This led 
     to the historical electronic surveillance activity being 
     expressed as a percentage of engineered capacity of 0.34%. 
     This percentage was derived by dividing the 120 simultaneous 
     interceptions by 35,000 subscribers. With regard to the 
     highest level of simultaneous interception activity noted in 
     the baseline data occurring with regard to Category II (42), 
     the switch associated with that interception activity was one 
     that typically served an average of 27,000 subscribers. This 
     led to the historical electronic surveillance activity being 
     expressed as a percentage of engineered capacity of 0.16%. 
     This percentage was derived by dividing the 42 simultaneous 
     interceptions by 27,000 subscribers.
       As discussed above, the interception activity which was now 
     being associated with Category III reflected little or no 
     activity in the past. Hence the capacity level associated 
     with Category III was dervived in a different manner. To 
     establish a percentage regarding areas where there had been 
     little or no past interception activity, for purposes of 
     future analyses, we examined the distribution of historical 
     interception activity for those switches with very little or 
     not interception activity. The majority of these switches had 
     electronic surveillance activity of less than 0.1% of the 
     capacity associated with such switches. This led law 
     enforcement to assign 0.1% as the level of historical 
     electronic surveillance activity for Category III, expressed 
     as a percentage of engineered capacity. This figure, 
     therefore, was selected essentially to ensure a bare minimum 
     capacity to support law enforcement interceptions.


part two: estimating and using growth rates to project future capacity 
                       and interception activity

       CALEA's mandate that law enforcement identify capacity 
     requirements marked the first time future carrier capacity 
     sizings and future potential interception activity were 
     required to be estimated. Although CALEA provided no specific 
     date as an outer bound for the projection for maximum 
     capacity, the year 2004 was used for its projection of 
     maximum capacity. We used the year 2004 because it 
     reflects a ten year period from the last date for which 
     historical data was available (1994). A ten year period is 
     commonly used as a period of time within which to analyze 
     and prepare projections. An analysis of a period of this 
     length also provides the affected telecommunications 
     carriers with the information that would produce the 
     greatest level of stability for the mid-term to 
     intermediate future. By comparison, CALEA specifies 
     October 1998 as the date for projecting potential future 
     interception activity (actual capacity).
       Four steps were followed to determine the maximum and 
     actual capacity percentages which were published in the 
     Initial Capacity Notice. These four steps are as follows:


 step 1: establishing a statistical model; projecting title iii court 
 Order trends as a predicate for projecting future design capacity and 
                 potential future interception activity

       Projections regarding future design capacity that may be 
     required to accommodate unusual future interception activity, 
     as well as the amount of potential future interception 
     activity itself (call content interceptions, as well as the 
     much more prevalent pen register and trap and trace 
     interceptions), in terms of the number of lines that possibly 
     could be implicated, are not readily and easily derived. For 
     example, when one considers just one of the relevant groups 
     of information (past Title III court order authorizations) it 
     becomes apparent that a simple straight line trend does not 
     exist. In reviewing the number of such authorizations on a 
     yearly basis over the last 15 years (1980-1994), there is 
     over a 100% increase (from 566 to 1154). However, the year to 
     year increases are anything but consistent, with variations 
     from -12% to +19% occurring by way of yearly changes.
       Although it may be impossible to discern precisely why 
     increases (or decreases) occur on a yearly basis with regard 
     to all of the types of interception activity, a number of 
     factors were considered (discussed further below) which over 
     time presumably would logically influence such activity. In 
     brief, these factors relate to population, telecommunications 
     technology, law enforcement resources, and relevant crime 
     statistics.
       Notwithstanding the difficulty in making long range 
     estimations about a design capacity level capable of 
     accommodating reasonable growth over the intermediate future 
     (1998-2004) and which, more importantly, could also address 
     totally unexpected worst case scenarios (maximum capacity) 
     and future potential, interception activity (actual 
     capacity), in terms of the number of lines implicated, we 
     were obligated to respond to CALEA's mandate to produce 
     capacity estimates.
       Law enforcement determined that it was imperative to 
     construct and utilize an analytical statistical model in 
     order to address the variability related to relevant 
     historical data that could be associated with interception 
     activity. The model selected was a widely-used model referred 
     to as a multi-variable linear regression statistical model. 
     With such a model, future trends central to predicting 
     capacity could be projected.
       In broad terms, this model sought to project potential 
     future behavior based upon an analysis of the relationships 
     between two data groups for which historical data was 
     available over the last 15 years. One data group was the 
     number of criminal Title III court orders authorized between 
     1980 and 1994. The other data group was composed of a suite 
     of relevant factors (multi-variables) related to population, 
     telecommunications technology, law enforcement resources, and 
     relevant crime statistics. Once trend relationships were 
     noted between the second group and the first, an equation was 
     produced from which projections as to the future level of the 
     first group (Title III court orders) could be established 
     based on growth projections of the second group. The 
     projection for the criminal Title III court order 
     authorizations was an important analytic first step in 
     projecting the design capacity and future potential 
     interception activity in terms of the number of lines 
     (interceptions) that may be involved.
       The first data group consisted of the number of Title III 
     court order authorizations recorded per year in the Wiretap 
     Report, compiled each year by the Administrative Office of 
     the United States Courts. In an attempt to establish a trend, 
     we examined the criminal Title III court order authorizations 
     granted per year over the last 15 years (1980-1994). As noted 
     above, however, an examination of this data showed 
     significant yearly fluctuations thereby precluding a simple, 
     straight line trend for approximating future authorizations. 
     Also, as noted above, the Wiretap Report only documents the 
     number of criminal Title III court orders; it does not 
     specify the actual number of call content interceptions 
     associated with each order, nor does it address at all the 
     vastly greater number of interceptions associated with pen 
     registers and traps and traces. Nonetheless, because it was 
     the only longstanding electronic surveillance data source in 
     existence, it was concluded that it necessarily should play 
     an important role in the model because it did document past, 
     relevant interception-related information from which 
     projections of design capacity and future potential 
     interception activity could later be made.
       The second data group consisted of factors or multi-
     variables deemed relevant with regard to the conduct of all 
     types of interception activity. These factors, as noted 
     above, were population, telecommunications technology, law 
     enforcement resources, and relevant crime statistics. 
     Historical and projected future data on population totals was 
     collected from the United States Census Bureau. Historical 
     and projected future data for wireline telecommunications 
     subscribers was collected from the Federal Communications 
     Commission. Historical data on wireless subscribers was 
     acquired from reviewing publications issued by the Cellular 
     Telecommunications Industry Association (CTIA). Projected 
     future data for wireless subscribers was derived based upon 
     an analysis of information found in trade journals concerning 
     future projections of the number of wireless subscribers and 
     attributed to the CTIA, the Personal Communications Industry 
     Association, and other industry sources. Historical data on 
     total number of law enforcement officers and reported 
     incidents of violent crime was collected from the FBI's 
     Uniform Crime Report. Projected future data on the total 
     number of law enforcement officers and crime was derived 
     based on an assumed linear growth rate of the historical 
     data. For each of the above factors, projections for future 
     data were made out to the year 2004.


                     step 2: computing growth rates

       Using the projected future data produced by the equation, 
     the statistics indicated a growth rate of 130% in the first 
     group between 1994 and 2004, a factor which was included in 
     the subsequent analysis used to project maximum (design) 
     capacity. By comparison, a projection for potential future 
     interception activity (actual capacity) was arrived at by 
     noting the statistics in the first group, that had applied 
     the same trends projected by the statistical model, 
     suggesting a growth rate between 1994 and 1998 of 54 percent. 
     As noted above, when one reviews the number of criminal Title 
     III court order authorizations on a yearly basis during the 
     last 15 years (1980-1994), there is more than a 100% increase 
     (from 566 to 1154). Also, when one reviews available official 
     reports regarding the vastly more prevalent pen register and 
     trap and trace court orders granted during the last 8 years, 
     one observes an increase 

[[Page S1170]]
     of 219%. Finally, for the same period, with regard to such pen register 
     and trap and trace court orders ``the number of persons whose 
     telephone facilities were affected'' increased by 345%.\6\ 
     Consequently, the model's results are considered to be 
     reasonable and consistent with past interception-related 
     activity and appropriate for use as part of the analysis.


     step 3: projections for design capacity and potential future 
                         interception activity

       As noted above, the historical interception activity 
     expressed as a percentage of engineered capacity for Category 
     I was 0.34% (120 simultaneous interceptions out of a switch 
     serving a possible 35,000 subscribers); and the historical 
     interception activity expressed as a percentage of engineered 
     capacity for Category II was 0.16% (42 simultaneous 
     interceptions out of a switch serving a possible 27,000 
     subscribers). For Category III, the minimum level of 
     interception activity expressed as a percentage of engineered 
     capacity was 0.1%. The computed growth rates of 130% and 54% 
     were converted into growth multipliers of 2.3 and 1.54, for 
     maximum and actual capacity, respectively. By multiplying the 
     historical interception activity figures for Category I, 
     Category II, and Category III by the growth multipliers, we 
     calculated numbers for a ``raw'' maximum and actual capacity, 
     as illustrated in the table below.

     RAW MAXIMUM AND ACTUAL CAPACITY PREDICTED BY THE GROWTH FACTORS    
------------------------------------------------------------------------
                                        Maximum             Actual      
------------------------------------------------------------------------
Category I......................  0.34%2.3=0.78%....  0.34%1.54=0.52%   
Category II.....................  0.16%2.3=0.37%....  0.16%1.54=0.25%   
Category III....................  0.10%2.3=0.23%....  0.10%1.54=0.15%   
------------------------------------------------------------------------

    step 4: applying reasonableness criteria to the raw calculations

       In projecting future design capacity (maximum capacity) and 
     capacity for potential future interception activity (actual 
     capacity) that may be needed by all law enforcement agencies, 
     for publication in the Federal Register, the FBI made 
     downward adjustments to the numbers that were set forth with 
     regard to the raw actual capacity in both Categories I and 
     III. A substantial downward adjustment was made in Category 
     III. These downward adjustments were made because law 
     environment recognized that a majority of the affected 
     telecommunications carriers fall in Category III, and that 
     our historical interception activity was minimal in this 
     category. Therefore, we chose to lessen the burden on the 
     telecommunications industry and minimize the costs of 
     installing solutions, consistent with assuring an essential 
     minimum level of interception capacity.
       The numbers set forth for the raw maximum capacity in 
     Categories I, II, and III were adjusted upward for a number 
     of reasons. First, as noted above, the interception activity 
     associated with pen registers and traps and traces by far 
     represents the most frequently used type of interception. The 
     growth rate in the number of pen register and trap and trace 
     court orders far exceeds that projected in the statistical 
     analysis. As noted above, the percentage of increase in such 
     court orders during the past 8 years was 219% and the number 
     of persons whose telephone facilities were affected increased 
     345%.
       Second, although the peak number of simultaneous 
     interceptions identified in the baseline data was 220, we 
     elected not to use it in the statistical analysis because it 
     was deemed to be an anomaly. However, this level of 
     interception activity, although anomalous, is indicative of 
     the type of worst-case scenarios that law enforcement should 
     not easily ignore or completely discount. Hence some 
     provision needs to be made for such situations.
       Third, although every effort was made to capture as 
     accurately as possible the actual levels of past interception 
     activity in compiling our baseline of historical intercept 
     information, there may be some instances where data was not 
     fully collected or reported. Also, there is an amount of 
     interception activity associate with national security that 
     must be accounted for in the final capacity projections.
       Fourth, during the study period (1980-1994), the number of 
     States granting State and local law enforcement interception 
     authority by statute increased and a number of 
     States expanded interception authority to cover additional 
     types of crimes and/or additional types of communications 
     devices (e.g., cellular telephones and pagers). There is a 
     reasonable likelihood that in the future other States may 
     grant similar interception authority and/or increase the 
     scope of existing interception authority.
       Finally, law enforcement believed that judgment needed to 
     be brought to bear on the numbers for raw actual and maximum 
     capacity, in terms of making appropriate upward or downward 
     adjustments. In particular, the FBI, acting on behalf of the 
     entire law enforcement community, had a responsibility to be 
     careful not to overstate or understate capacity needs. 
     Importantly, however, if capacity needs were understated it 
     could pose direct harm to the public safety and effective law 
     enforcement.


                        initial capacity notice

       On October 16, 1995, the FBI published in the Federal 
     Register its Initial Capacity Notice. The estimates of actual 
     and maximum capacity, expressed as a percentage of engineered 
     capacity, were stated as follows in the Initial Capacity 
     Notice:

 ESTIMATES FOR PROJECTED MAXIMUM AND ACTUAL CAPACITY AS PUBLISHED IN THE
                            FEDERAL REGISTER                            
------------------------------------------------------------------------
                                                    Maximum     Actual  
------------------------------------------------------------------------
Category I......................................      1.00%       0.50% 
Category II.....................................      0.50%       0.25% 
Category III....................................      0.25%       0.05% 
------------------------------------------------------------------------

       After the FBI's publication of the Initial Capacity Notice 
     in the Federal Register, you requested two documents in your 
     correspondence: (1) the historical baseline of electronic 
     surveillance activity, and (2) an analysis of that activity. 
     By way of response and clarification, although we examined 
     past electronic surveillance activity and utilized certain 
     key pieces of information derived therefrom as discussed in 
     this letter, no ``document'', as such, was ever created. 
     Similarly, the factors utilized in our analysis were never 
     compiled into a document.
       Nonetheless, because of the interest and the 
     misunderstandings that have been associated with this matter, 
     we currently are in the process of preparing two methodology 
     documents which will explain our capacity notice efforts in 
     greater depth. The first document will describe the process 
     used to collect historical electronic surveillance 
     information. The second document will describe the analysis 
     used in developing the Initial Capacity Notice, as well as 
     the Final Capacity Notice. Regarding the latter, it will take 
     into account the written comments we have received and the 
     input from our ongoing meetings with the telecommunications 
     industry and other interest groups. The FBI will provide 
     copies of these two documents to you upon their completion.


                                summary

       As you are aware, in 1968 when Congress statutorily 
     authorized court ordered electronic surveillance, telephone 
     technology permitted law enforcement to execute, without 
     impairment, essentially all court orders--a 100 percent 
     capability/capacity to accommodate law enforcement's court 
     ordered electronic surveillance needs. However, the onset of 
     new and advanced technologies has begun to erode the capacity 
     and capability of the telecommunications industry to support 
     law enforcement's interception needs. For the first time, 
     technological limitations will potentially be set on law 
     enforcement's ability to lawfully conduct electronic 
     surveillance. In view of these potential limitations, an 
     attempt was made to estimate law enforcement's capacity needs 
     in an accurate and reasonable manner with the goal of 
     striking a balance of meeting law enforcement's interception 
     needs without introducing unduly burdensome or excessive 
     requirements on telecommunications carriers. This in no way 
     changes law enforcement's fundamental statutory 
     responsibility to obtain proper legal authority to conduct 
     electronic surveillance. CALEA's capacity requirements simply 
     ensure that, after law enforcement obtains proper legal 
     authority, telecommunications carriers will have sufficient 
     capacity to accommodate lawfully authorized electronic 
     surveillance activity.
       To project capacity needs, the previously described 
     national methodology was employed in order to prepare an 
     Initial Capacity Notice for publication in the Federal 
     Register. Since release of the Notice, law enforcement has 
     met with privacy advocates, the telecommunications industry, 
     and other interested parties to clarify and further describe 
     how best to apply capacity needs within a given carrier's 
     network, and it is reviewing and considering the formal 
     written comments provided in response to the Initial Capacity 
     Notice.
       In closing, CALEA is important to the public safety and 
     national security of this nation and its full and timely 
     implementation is critically important to the American 
     public. On behalf of the law enforcement community, we would 
     again like to express our appreciation for your support and 
     leadership regarding this significant and complex issue. With 
     the continued support of the Congress, we are confident that 
     CALEA will be fully implemented in an effective and efficient 
     manner.


                               footnotes

     \1\ For purposes of this discussion, the word 
     ``interception'' refers to all types of interceptions: (1) 
     interceptions of communication content (e.g., Title III); and 
     (2) interceptions of dialing-related information (call 
     identifying information) derived from pen registers and traps 
     and traces.
     \2\ 47 U.S.C. 1003 (1994).
     \3\ For purposes of this discussion, the word ``lines'' 
     refers to the transmission path from a subscriber's terminal 
     to the network via a wireline or wireless medium.
     \4\ Although a valuable source for historical information on 
     criminal Title III (call content) court orders, The Wiretap 
     Report, published annually by the Administrative Office of 
     the United States Courts, does not identify the actual number 
     of interception lines associated with each court order or, 
     more importantly, with the vastly greater number of lines 
     associated with pen register and trap and trace interceptions 
     that have been performed by all law enforcement agencies. 
     Even though the FBI used information pertaining to the number 
     of court orders reported in The Wiretap Report as an 
     essential element for forecasting purposes, the Report does 
     not contain the line-related information that was needed to 
     identify the actual level of past interception activity 
     related to specific switches.
     \5\ For purposes of this discussion, the term ``switch'' also 
     represents a licensed cellular service area.
     \6\ 18 U.S.C. 3126 (1986). By law, the Department of Justice 
     is required to report to the Congress on a yearly basis 
     information on the use of pen registers and trap and trace 
     devices by law enforcement agencies within the Department of 
     Justice. This report includes information concerning the 
     number of original orders, extensions, the number of 
     investigations, the number of persons whose telephone 
     facilities were affected, and the number of overall dialings.
     
[[Page S1171]]


           TRANSFER OF NUCLEAR TECHNOLOGY TO THIRD COUNTRIES

  Mr. THOMAS. Mr. President, I rise today as the Chairman of the 
Subcommittee on East Asian and Pacific Affairs to express my grave 
concern at recent reports regarding the sale or transfer by the 
People's Republic of China of nuclear technology to third countries.
  It has been widely reported in the domestic press that the U.S. 
intelligence agencies have thoroughly credible evidence that these 
sales have occurred; I have seen some of this evidence myself, as have 
many of my colleagues, and find it to be overwhelming.
  In the past, we have seen evidence of missile sales to Pakistan, and 
the transfer of certain nuclear technology to Iran, in violation of 
United States law and international nuclear agreements. The most recent 
reports involved the sale of over 5,000 ring magnets to Pakistan. These 
magnets are component parts of centrifuges used to enrich uranium to 
make it weapons-grade. The magnets are made of a highly advanced alloy, 
and according to experts will significantly enhance Pakistan's nuclear 
program by allowing its laboratory at Kahuta to upgrade its centrifuges 
at the rate of between 1,000 and 2,000 per year.
  The People's Republic of China has not denied that the sale took 
place. Somewhat inconsistently, Pakistan categorically denies these 
reports. Mr. President, Karachi's denials ring completely hollow. How 
many times did the Pakistani Government deny that it was pursuing the 
development of nuclear weapons, only to have the United States produce 
irrefutable evidence to the contrary? How many times did they assure us 
that they had no such intentions, only to be caught sneaking behind our 
backs doing the precise things they denied? Mr. President, one hates to 
use the word ``lie,'' but as the saying goes--if the shoe fits.
  Almost more troubling than the sales themselves, Mr. President, is 
what is shaping up to be the Clinton administration's completely 
inadequate response to the sales. Under U.S. law, we are required to 
impose a variety of sanctions on any nation selling nuclear weapons 
technology in violation of nonproliferation commitments. Only if the 
President states that requirement because of the national interest are 
the sanctions waived.
  Here, we have solid evidence that the People's Republic of China has 
violated its agreements in this regard. The failure to impose the 
sanctions required by our laws, I believe, is a mistake of the greatest 
magnitude. I can think of no worse signal to send the Chinese 
Government than for us to draw a line in the sand, have them cross it, 
and for us to shrug it off and say ``now don't do that again.'' The 
Chinese are quick to pick up on occasions when we fail to stick to our 
guns, and only see it as encouragement. This is why I have been so 
supportive of U.S. Trade Representative Mickey Kantor. He has told the 
Chinese in the trade arena that if they do not abide by their 
agreements, there will be a price to pay. And, when necessary, he has 
moved steadfastly to impose that price in the form of sanctions. The 
Chinese, recognizing the strength of such a position, have subsequently 
backed down and honored their agreements.
  For us to back down from our principles in this matter is to 
completely call into question our determination in a host of other 
areas, the security of Taiwan comes immediately to mind, and as Senator 
Specter has noted ``make[s] our national policy a laughing stock and 
encourage[s] a proliferation of nuclear weapons.'' Yet the Clinton 
administration is showing every sign of being willing to shrug off the 
People's Republic of China actions, rap them on the nose, and ask them 
to please not do it again.
  During the 1992 presidential campaign, candidate Clinton took 
President Bush to task for ``coddling dictators''--especially the 
Chinese. Well Mr. President, like he has on so many other issues that 
were central to his campaign President Clinton has flip-flopped on this 
one, saying one thing but doing some thing completely different. I ask 
my colleagues, who is doing the coddling now? The White House appears 
close to waiving sanctions because it is worried about offending China 
and because it is kowtowing to United States business interests in an 
election year afraid of the effects on their bottom-line that sanctions 
might have.
  Can you imagine that, Mr. President? As the Washington Post pointed 
out this morning, ``The Chinese are the accused violators, and the 
Americans--as the complaining and injured party--are backing off.'' 
This administration is backing off in the shortsighted hope that 
Beijing has learned its lesson and won't do it again. It's like telling 
a child not to take a cookie, watching him take it, but not telling him 
he's a bad boy in the hopes that maybe he won't want to take another 
cookie. And this is not the only area in which the Clinton 
administration is coddling Beijing. USTR Kantor, who has on several 
occasions urged the White House to impose sanctions on the PRC because 
it is still in violation of several of the key provisions of the Sino-
American intellectual property rights agreement, has been prevented by 
this administration from setting a deadline for Chinese compliance for 
fear of upsetting the violators of that agreement.
  Mr. President, I join my colleagues in both Houses in calling for the 
imposition of the sanctions required by U.S. law in this case. We need 
to say what me mean, and then do what we say. Any failure or hesitation 
to do so can only be interpreted in Beijing as a sign of weakness, and 
sets a very dangerous precedent that we will regret down the road.
  Mr. GLENN. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Leahy pertaining to the introduction of S. 1567 
are located in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')

                          ____________________