[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.'')
____________________