[Federal Register Volume 62, Number 229 (Friday, November 28, 1997)]
[Proposed Rules]
[Pages 63302-63304]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30902]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 97-213, FCC 97-356]


Communications Assistance for Law Enforcement Act

AGENCY: Federal Communications Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: On October 10, 1997, the Commission released a Notice of 
Proposed Rulemaking in CC Docket No. 97-213 to implement the portion of 
the Communications Assistance for Law Enforcement Act that requires 
Commission rulemaking. This NPRM contains proposed or modified 
information collections subject to the Paperwork Reduction Act of 1995 
(PRA). It has been submitted to the Office of Management and Budget 
(OMB) for review under the PRA. OMB, the public, and other Federal 
agencies are invited to comment on the proposed or modified information 
collections contained in this proceeding.

DATES: Comments are due December 12, 1997; Reply Comments are due 
January 12, 1997. Written comments by the public on the proposed and/or 
modified information collections are due December 12, 1997. Written 
comments must be submitted by the OMB on the proposed and/or modified 
information collections on or before 60 days after the date of 
publication in the Federal Register.

ADDRESSES: In addition to filing comments with the Secretary, Federal 
Communications Commission, a copy of any comments on the information 
collections contained herein should be submitted to Judy Boley, Federal 
Communications Commission, Room 234, 1919 M Street, N.W., Washington, 
DC 20554, or via the Internet to [email protected], and to Timothy Fain, 
OMB Desk Officer, 10236 NEOB, 725--17th Street, N.W., Washington, DC 
20503 or via the Internet to [email protected].

FOR FURTHER INFORMATION CONTACT: David Ward, Network Services Division, 
Common Carrier Bureau, (202) 418-2320. For additional information 
concerning the information collections contained in this NPRM contact 
Judy Boley at 202-418-0214, or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This summarizes the Commission's Notice of 
Proposed Rulemaking in CC Docket No. 97-213, In the Matter of 
Communications Assistance for Law Enforcement Act, FCC 97-356, adopted 
October 2, 1997, and released October 10, 1997, as corrected in 
Erratum, CC Docket No. 97-213, rel. October 24, 1997. The record in 
this proceeding is available for inspection and copying during the 
weekday hours of 9 a.m. to 4:30 p.m. in the Commission's Reference 
Center, room 239, 1919 M St., N.W., Washington, D.C., or copies may be 
purchased from the Commission's duplicating contractor, ITS, Inc. 2000 
M Street, N.W., Suite 140, Washington, D.C. 20037, phone (202) 857-
3800.

Paperwork Reduction Act

    This NPRM contains either a proposed or modified information 
collection. The Commission, as part of its continuing effort to reduce 
paperwork burdens, invites the general public and the Office of 
Management and Budget (OMB) to comment on the information collections 
contained in this NPRM, as required by the Paperwork Reduction Act of 
1995, Pub. L. No. 104-13. Public and agency comments are due at the 
same time as other comments on this NPRM; OMB notification of action is 
due 60 days from the date of publication of this NPRM in the Federal 
Register. Comments should address: (a) whether the proposed collection 
of information is necessary for the proper performance of the functions 
of the Commission, including whether the information shall have 
practical utility; (b) the accuracy of the Commission's burden 
estimates; (c) ways to enhance the quality, utility, and clarity of the 
information collected; and (d) ways to minimize the burden of the 
collection of information on the respondents, including the use of 
automated collection techniques or other forms of information 
technology.
    OMB Approval Number: None.
    Title: Communications Assistance for Law Enforcement Act, NPRM.
    CC Docket No: 97-213.
    Form No.: N/A.
    Type of Review: New collection.
    Respondents: Business or other for profit.

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                                                                                                        Total   
                                                                           Number of     Estimated      annual  
                          Proposed requirement                            respondents    time per       burden  
                                                                                         response       hours   
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Affidavits (proposed Sec. 64.1704(c))...................................        3,500          2.45        8,575
Record keeping (proposed Sec. 64.1704)..................................        3,500          4.9        17,150
Compliance Statements (proposed Sec. 64.1704)...........................        3,500          1.0         3,500
List of Designated Personnel............................................        3,500          5.0        17,500
                                                                         ---------------------------------------
      Total Annual Burden Hours.........................................  ...........  ............       46,725
Estimated Cost per Respondent: $700.                                                                            
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Needs and Uses

    The Communications Assistance for Law Enforcement Act (CALEA) 
requires the Commission to adopt rules that regulate the conduct and 
record keeping of lawful electronic surveillance. CALEA also requires 
the Commission to adjudicate petitions from telecommunications carriers 
and interested parties to the extent to which they must comply with 
CALEA's requirements, capability standards, and the reasonable 
achievability of law enforcement officials' capability requirements. 
The information submitted to the Commission by telecommunications 
carriers will be used to determine whether or not the 
telecommunications carriers are in conformance with CALEA's 
requirements. The information maintained by telecommunications carriers 
will be used by law enforcement

[[Page 63303]]

officials to determine the accountability and accuracy of 
telecommunications carriers' compliance with lawful electronic 
surveillance orders.

Analysis of Proceeding

    1. In the Notice of Proposed Rulemaking, CC Docket No. 97-213, the 
Commission asks for comment on the identity and classes of carriers 
that should be included or excluded from the Communications Assistance 
of Law Enforcement Act's (CALEA's) definition of ``telecommunications 
carrier.'' CALEA only applies to telecommunications carriers. Thus, if 
a carrier is not classified a telecommunications carrier, it does not 
have to conform to CALEA's requirements. CALEA grants the Commission 
the authority to include entities in the definition of 
``telecommunications carriers.'' The Commission also asks for comment 
on the criteria to determine which carriers and classes of carriers 
meet the definition of telecommunications carrier.
    2. CALEA directs the Commission to rule upon petitions from 
carriers that contend that they cannot ``reasonably achieve'' 
compliance with CALEA's capability requirements. CALEA states that 
petitioners must be reimbursed by the Attorney General for the expense 
of CALEA compliance if the Commission determines that compliance is not 
reasonably achievable, or are deemed to be in compliance to the extent 
that the Attorney General agrees to reimburse the petitioner. In the 
Notice of Proposed Rulemaking (NPRM), the Commission asks for comment 
with respect to the statutory criteria established for determining 
whether compliance is ``reasonably achievable.''
    3. CALEA directs the Commission to adopt rules to ensure the system 
security and integrity of lawful electronic surveillance conducted by 
telecommunications carriers. In the NPRM, the Commission asks for 
comment on the policies and procedures that telecommunications carriers 
must adopt to meet this requirement and on proposed reporting and 
record keeping rules to accomplish this requirement. The Commission 
also asks for comment on a proposal that provides small 
telecommunications carriers with a less burdensome reporting procedure.
    4. CALEA contains a deadline when all telecommunications carriers 
must be in compliance with CALEA's capability requirements. CALEA 
authorizes the Commission to grant extensions to telecommunications 
carriers that petition the Commission. In the NPRM, the Commission asks 
for comment on the criteria for granting petitions for extensions to 
the statutory deadline.

List of Subjects in 47 CFR Part 64

    Common carrier, Reporting and recordkeeping requirements, 
telecommunications.

Federal Communications Commission.
William F. Caton,
Acting Secretary.

Proposed Rules

    Title 47 of the Code of Federal Regulations, part 64, is amended as 
follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

    1. The authority citation for part 64 is revised to read as 
follows:

    Authority: 47 U.S.C. 151, 154, 201, 202, 205, 218-220, and 332 
unless otherwise noted. Interpret or apply secs. 201, 218, 225, 226, 
227, 229, 332, 48 Stat. 1070, as amended, 47 U.S.C. 201-204, 218, 
225, 226, 227, 229, 332, 501 and 503 unless otherwise noted.

    2. Part 64 is proposed to be amended be revising subpart Q to read 
as follows:

Subpart Q--Telecommunications Carrier Interceptions pursuant to the 
Communications Assistance for Law Enforcement Act (CALEA)

Sec.
64.1700  Purpose.
64.1701  Scope.
64.1702  Definitions.
64.1703  Interception Requirements and Restrictions.
64.1704  Carrier Records.
64.1705  Compliance Statements.


Sec. 64.1700  Purpose.

    Pursuant to the Communications Assistance for Law Enforcement Act, 
Pub. L. No. 103-414, 108 Stat. 4279 (1994) (codified as amended in 
sections of 18 U.S.C. and 47 U.S.C.), this subpart contains 
implementation and compliance rules to govern telecommunications 
carriers subject to CALEA. These rules are in addition to rules 
promulgated by the Department of Justice pursuant to CALEA 
requirements.


Sec. 64.1701  Scope.

    The definitions included in this subpart shall be used solely for 
the purpose of implementing CALEA's requirements.


Sec. 64.1702  Definitions.

    (a) Telecommunications carrier. The term ``telecommunications 
carrier'' means--
    (1) A person or entity engaged in the transmission or switching of 
wire or electronic communications as a common carrier for hire; and
    (2) Includes--
    (i) A person or entity engaged in providing commercial mobile 
service (as defined in Section 332(d) of the Communications Act of 1934 
(47 U.S.C. 332(d)); or
    (ii) A person or entity engaged in providing wire or electronic 
communication switching or transmission service to the extent that the 
Commission finds that such service is a replacement for a substantial 
portion of the local telephone exchange service and that it is in the 
public interest to deem such a person or entity to be a 
telecommunications carrier for purposes of this title; but
    (3) Does not include persons or entities insofar as they are 
engaged in providing information services.
    (b) Information services. The term ``information services''
    (1) Means the offering of a capability for generating, acquiring, 
storing, transforming, processing, retrieving, utilizing, or making 
available information via telecommunications; and
    (2) Includes--
    (i) A service that permits a customer to retrieve stored 
information from, or file information for storage in, information 
storage facilities;
    (ii) Electronic publishing; and
    (iii) Electronic messaging services; but
    (3) Does not include any capability for a telecommunications 
carrier's internal management, control, or operation of its 
telecommunications network.
    (c) Appropriate legal authorization. The term ``appropriate legal 
authorization'' means:
    (1) A court order signed by a judge of competent jurisdiction 
authorizing or approving interception of wire or electronic 
communications; or
    (2) A certification in writing by a person specified in 18 U.S.C. 
2518(7); or
    (3) A certification in writing by the Attorney General of the 
United States that no warrant or court order is required by law, that 
all statutory requirements have been met, and that the specified 
assistance is required.
    (d) Appropriate carrier authorization. The term ``appropriate 
carrier authorization'' means policies adopted by telecommunications 
carriers to identify carrier employees authorized to assist law 
enforcement in conducting communications authorizations.
    (e) Third party. ``Third party'' means a person other than those 
authorized to receive a communication pursuant to 47 U.S.C. 605 of the 
Communications Act.

[[Page 63304]]

Sec. 64.1703  Interception requirements and restrictions.

    An employee or officer of a telecommunications carrier shall assist 
in intercepting and disclosing to a third party a wire, oral, or 
electronic communication or shall provide access to call-identifying 
information only upon receiving a court order or other lawful 
authorization.


Sec. 64.1704  Carrier records.

    (a) The officers of any telecommunications carrier shall ensure 
that the carrier maintains records of any assistance provided for the 
interception and disclosure to third parties of any wire, oral, or 
electronic communication or of any call-identifying information. The 
record will be made either contemporaneously with each interception, or 
not later than 48 hours from the time each interception begins, and 
shall include:
    (1) The telephone number(s) or circuit number(s) involved;
    (2) The date and time the interception started;
    (3) The date and time the interception stopped;
    (4) The identity of the law enforcement officer presenting the 
authorization;
    (5) The name of the judge or prosecuting attorney signing the 
authorization;
    (6) The type of interception (e.g., pen register, trap and trace, 
``Title III'' interception pursuant to 18 U.S.C. 2510 et seq. and 
collateral state statutes, Foreign Intelligence Surveillance Act 
(``FISA'') 50 U.S.C. 1801 et seq.); and
    (7) The names of all telecommunications carrier personnel involved 
in performing, supervising, and internally authorizing, the 
interception, and the names of those who possessed knowledge of the 
interception.
    (b) A separate record shall be kept of any instances of 
interception, and of the identities of third parties to which 
disclosure of call-identifying information is made. In addition to the 
information listed in paragraphs (a) (1) through (7) of this section, 
these records will provide a complete discussion of the facts and 
circumstances surrounding the interception and disclosure. Each record 
shall be maintained in a secure location accessible only by authorized 
carrier personnel for a period of ten (10) years from its creation.
    (c) The officers of any telecommunications carrier shall assure 
that any employee, agent, or officer of the carrier engaged in 
performing authorized interceptions for law enforcement personnel or 
having access to such information does not disclose to any other person 
any information about such activity. Any employee or officer who has 
access to such information shall sign a statement that provides as 
follows:
    (1) The telephone number(s) or circuit identification number(s) 
involved;
    (2) The name of each employee or officer who effected the 
interception and possessed information concerning its existence, and 
their respective positions within the telecommunications carrier;
    (3) The date and time the interception started;
    (4) The date and time the interception stopped;
    (5) The type of interception (e.g., pen register, trap and trace, 
``Title III'' interception pursuant to 18 U.S.C. 2510 et seq. and 
collateral state statutes, Foreign Intelligence Surveillance Act 
(``FISA'') 50 U.S.C. 1801 et seq.);
    (6) A copy or description of the written authorization for the 
employee and officer to participate in surveillance activity; and
    (7) A statement that the employee or officer will not disclose 
information about the interception to any person, not properly 
authorized by statute or court order.


Sec. 64.1705  Compliance statements.

    (a) Each telecommunications carrier having annual revenues from 
telecommunications operations in excess of the threshold defined in 47 
CFR 32.9000 shall file with the Commission a statement of the policies, 
processes and procedures it uses to comply with the requirements of 
this subpart. These statements shall be filed with the Secretary, 
Federal Communications Commission, on or before [Date to be inserted in 
Final Rule], and shall be captioned, ``Interception Procedures'' filed 
pursuant to Sec. 64.1704. Carriers seeking confidential treatment for 
any part of the statement shall clearly state the authority justifying 
such treatment pursuant to 47 CFR 0.459 and shall fully document all 
facts upon which that carrier proposes to rely in its request for 
confidential treatment.
    (b) Any telecommunications carrier having annual revenues from 
telecommunications operations that do not exceed the threshold defined 
in 47 CFR 32.9000 may elect:
    (1) To file the statement required in paragraph (a) of this 
section; or
    (2) To certify that it observes procedures specified in the 
submission made pursuant to paragraph (a) of this section.

[FR Doc. 97-30902 Filed 11-26-97; 8:45 am]
BILLING CODE 6712-01-P