[Federal Register Volume 71, Number 241 (Friday, December 15, 2006)]
[Notices]
[Pages 75581-75584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21426]



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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

[Docket No. FBI 109]
RIN 1100-AA14


Implementation of Section 104 of the Communications Assistance 
for Law Enforcement Act

AGENCY: Federal Bureau of Investigation, (FBI), Justice.

ACTION: Final Notice of Capacity; Notice of Response to Comments on 
Supplement for the Purpose of Responding to Remand.

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SUMMARY: By this Notice, the FBI is responding to comments submitted on 
its Supplement for the Purpose of Responding to Remand 
(``Supplement''), published previously on December 5, 2003, at 68 FR 
68112. As stated therein, the Supplement was published for the purpose 
of responding to a court decision to remand for further explanation two 
issues from the Final Notice of Capacity. The Final Notice of Capacity 
was published on March 12, 1998 at 63 FR 12218, pursuant to the 
requirements of the Communications Assistance for Law Enforcement Act 
(``CALEA''), 47 U.S.C. 1001, et seq. As stated in the Supplement, the 
court did not vacate the Final Notice of Capacity, and only required 
further explanation as to the two remanded issues. Neither this Notice, 
nor the Supplement constitute a republishing of the Final Notice of 
Capacity, and Telecommunications carriers should note that the 
provisions of 47 U.S.C. 1003(d) do not apply to today's Notice and 
should not file a ``carrier statement'' in response thereto.

FOR FURTHER INFORMATION CONTACT: Contact the CALEA Implementation Unit, 
Federal Bureau of Investigation (FBI) at (703) 814-4700, or at CALEA 
Implementation Unit, 14800 Conference Center Drive, Chantilly, VA 
20153.

I. Background

A. CALEA Generally

    Congress enacted the Communications Assistance for Law Enforcement 
Act (``CALEA'') in 1994 to require telecommunications carriers to 
ensure that their networks have the capability to enable local police, 
federal officers and all other law enforcement agencies to conduct 
lawfully authorized electronic surveillance. Electronic surveillance is 
an indispensable tool used in investigating serious crimes, including 
terrorism, drug trafficking, and kidnaping. Congress has long 
recognized the importance of this investigative technique, and has 
authorized and governed its use through several laws, including Title 
III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 
U.S.C. 2510 et seq. (``Title III''), the Electronic Communications 
Privacy Act of 1986, 18 U.S.C. 2701 et seq. (``ECPA''), and the Pen 
Registers and Trap and Trace Devices provisions, 18 U.S.C. 3121 et 
seq., as those laws were modified by the USA PATRIOT Act, Pub. L. 107-
56, 115 Stat. 272.
    The electronic surveillance laws cited above delineate the 
government's lawful authority to intercept communications and acquire 
call-identifying information. CALEA, by contrast, is intended to 
preserve the government's technical ability to engage in electronic 
surveillance as allowed by law. It does so by requiring 
``telecommunications carriers'' to design or modify their systems to 
ensure the government's ability to intercept communications and acquire 
call-identifying information, pursuant to lawful authorization.
    In addition, CALEA contains ``capacity requirements.'' See 
generally id Sec.  1003. The capacity provisions generally require 
carriers to be capable of supporting a certain number of communications 
interceptions, pen registers, and traps and traces at the same time. 
These provisions also require the Attorney General to issue a Notice of 
the maximum and actual capacity requirements setting forth the 
``maximum'' and ``actual'' number of communications interceptions, pen 
registers, and traps and traces that all government agencies may, in 
the future, conduct and use at the same time. The FBI Director is the 
authorized delegate of the Attorney General with respect to the 
implementation of CALEA, and therefore has issued such Notices of 
Capacity on the Attorney General's behalf.

B. Notices of Capacity

    In 1995, the FBI published an Initial Notice of Capacity which 
expressed capacity requirements in terms of a ``percentage of 
engineered capacity.'' 60 FR 53,643 (Oct. 16, 1995). After receiving 
comments from the public we revised that methodology and published a 
Second Notice of Capacity. 62 FR 1902 (Jan. 14, 1997). After an 
additional round of comments, we published the Final Notice of Capacity 
(referred to herein as the ``Final Notice'') on March 12, 1998. 63 FR 
at 12218-12310. At all times, we sought and incorporated the comments 
of the telecommunications industry, which assisted us in understanding 
the challenges facing the industry and others in applying the capacity 
requirements. The FBI acted on behalf of all federal, state and local 
law enforcement agencies nationwide in establishing these capacity 
requirements.

C. Court Decision

    On January 18, 2002, the District of Columbia Circuit ruled on a 
number of challenges to the Final Notice. See USTA v. FBI, 276 F.3d 620 
(D.C. 2002). While the Court's decision largely upheld the Final 
Notice, it vacated one issue and remanded two others to the FBI. The 
Court vacated the statement in the Final Notice (63 FR 12219) that 
``law enforcement considers 5 business days from a telecommunications 
carrier's receipt of a court order to be a reasonable time within which 
to permit an incremental expansion up to the maximum capacity.'' USTA, 
276 F.3d at 627. The Court also required the FBI to provide further 
explanation of: (1) Our decision to count any two historical 
surveillances occurring on the same day as simultaneous and, (2) our 
decision to set forth only one ``actual'' and one ``maximum'' capacity 
requirement number per geographic region, rather than separate 
requirements for each type of surveillance (communications 
interceptions, pen registers, traps and traces).
    The Court's concern with both of these issues centered on the 
explanations contained in the Final Notice. The Court did not vacate 
these portions of the Final Notice, but directed the district court to 
remand them to the FBI for a more adequate explanation.

D. FBI Response to Remand

    The FBI published a ``Supplement for the Purpose of Responding to 
Remand (``Supplement'')'' on December 5, 2003. For a complete 
explanation of the background for the Supplement, see 68 FR 68112.
    By way of background, the FBI published the Supplement in order to 
respond to the two issues described in the preceding section which were 
remanded to the FBI by the Court of Appeals in USTA v. FBI, 276 F.3d 
620 (D.C. 2002), with regard to the FBI's Final Notice of Capacity 
(``Final Notice''). The Final Notice was published on March 12, 1998 at 
63 FR 12218. In the Supplement, the FBI provided additional reasoning, 
not previously before the Court, for its decision in the Final Notice 
to count any two historical surveillances occurring on the same day as 
simultaneous. In addition, the Supplement contained further guidance 
for carriers with regard to the numerical capacity requirements stated 
in the

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Final Notice. This further guidance provided carriers with a method for 
breaking down such numerical capacity requirement numbers between 
communications interceptions and acquisitions of call-identifying 
information (pen registers or traps and traces). Carriers may utilize 
this guidance to ascertain the maximum number of communications 
interceptions that their systems must be capable of accommodating by 
reference to a percentage limitation and the capacity requirement for 
each geographic region. In many cases, this further guidance will lower 
the number of communications interceptions that a carrier might 
otherwise be required to accommodate based on the capacity 
requirements.

E. This Publication

    Some parties filed comments in response to the Supplement. The 
purpose of this publication is to summarize those comments and set 
forth the FBI's responses. As discussed in the next section, the FBI 
carefully considered any arguments or suggestions raised in such 
comments, with particular attention to any comments filed in response 
to the proposed breakdown of capacity requirements. Having considered 
such arguments, the FBI has determined that no changes should be made 
to the Supplement, including the proposed breakdown of capacity 
requirements, and it should be adopted as filed.

II. Response to Comments

    The FBI received only three comments regarding the Supplement. 
Comments were submitted by the United States Telecommunications 
Association (USTA), MCI Worldcom (MCI), and Verizon. Having considered 
the comments, the FBI has determined that no changes are necessary to 
the Supplement either with regard to the additional reasoning supplied 
regarding the interpretation of ``simultaneously'' or with regard to 
the proposed breakdown of capacity requirements. A detailed response to 
such comments follows.

A. Meaning of the Term ``Simultaneously''

    Two of the three commenters, USTA and MCI, discussed the additional 
reasoning provided in the Supplement by the FBI with regard to the 
meaning of the term ``simultaneously.'' Both of these comments, 
however, have only raised again the same issues previously considered 
and discussed by the FBI in the Supplement. Both USTA and MCI commented 
that the FBI's approach in Final Notice of Capacity (``Final Notice'') 
is still unreasonable because it does not reflect ``actual 
simultaneity'' (Worldcom, at 3) or ``interceptions [that] actually 
overlap in time.'' (USTA, 3). They argue the Supplement incorrectly 
continues to rely on the same approach taken in the Final Notice of 
Capacity. They further argue that the FBI should rather have abandoned 
its existing Final Notice of Capacity, conducted a new survey, and 
issued a new Notice of Capacity based on a methodology that treats only 
``overlapping'' intercepted phone calls as ``simultaneous.''
    As detailed in the Supplement, the FBI has already considered and 
rejected the methodology suggested by these comments, which is 
essentially to issue a new Notice of Capacity based upon on an estimate 
of the number of times that two or more ongoing surveillances will each 
be engaged in intercepting phone calls at the same time. See generally 
FR 68,114-68,118. Neither USTA nor MCI add any further weight or new 
information to this alternative interpretation requiring consideration 
of the number of ``overlapping'' intercepted phone calls. We reiterated 
in the Supplement that the FBI's approach was to treat any two or more 
ongoing surveillances, on the same day, as simultaneous. We explained 
in the Supplement that this approach represented a reasonable 
interpretation of the statutory language. 68 FR 68,114. It was also 
better suited to providing adequate notice of capacity requirements to 
carriers and law enforcement, particularly in the case of carriers 
whose systems require continuously dedicated resources during the 
entire surveillance effort, not just during those times when phone 
communications are actually being intercepted.
    In the Supplement, we also observed that the capability of some 
carriers' systems is directly affected by the number of ongoing 
surveillances, not by the number of ``overlapping'' intercepted 
telephone calls. These carriers'' technical interception solutions 
require resources to be dedicated for the entire time period during 
which a surveillance is ongoing, regardless of whether the intercept 
subject is actually using the telephone for communications. We found 
that if the capacity estimates were based only on the ``phone-call-
overlap'' concept as suggested by USTA and MCI in its comments, that 
these dedicated-resource type carriers might underestimate law 
enforcement's needs. See 68 FR 68,115.
    Both USTA and MCI agree with the fact that some carriers' actually 
require the continuous dedication of system resources for each ongoing 
surveillance (regardless of the existence of overlapping phone calls), 
but they argue that the FBI's consideration of this fact is 
inappropriate because today's carriers do not prefer this method. See 
USTA, p. 5; MCI, p. 4. As explained in the Supplement, however, the FBI 
approach to estimating capacity requirements is ``system-neutral'' in 
that it does not assume that carriers will adopt any particular method 
or approach. Indeed, as we noted in the Supplement, since the FBI 
cannot require carriers to use any particular type of system, the 
capacity requirements must be tailored to fit any approach carriers 
might take.\1\
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    \1\ See, e.g., 47 U.S.C. 1002(b)(1) (``This subchapter does not 
authorize any law enforcement agency or officer to require any 
specific design * * * or system configurations * * *'').
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    USTA, also appears to agree with the FBI's application of the term 
``simultaneous'' in the context of a carrier that is utilizing the 
dedicated-resource-approach to facilitating interception. In 
particular, USTA itself acknowledges that where a carrier uses a 
dedicated connection, such as a T1 line, then such an approach would 
require that ``an intercept be dedicated for the entire time of the 
surveillance * * *. Hence, an intercept could extend for an entire day 
and could overlap with other intercepts that may occur on the same 
day.'' USTA, p. 5. USTA adds, however, that such dedicated-resource 
systems constitute ``new technology'' and should not be considered as 
justifying the capacity requirements set forth in the Final Notice, 
mainly because the Final Notice was based on a survey of surveillance 
conducted in older-technology systems. Somewhat conversely, MCI 
comments that dedicated-resource systems are ``outdated'' and that non-
dedicated resource systems are now ``predominant,'' and therefore FBI 
should conduct a new survey of the ``instantaneous use of switching 
capacity.'' (MCI, 4).
    We continue to disagree with both the factual premise and the 
conclusion of these points. Carrier systems relying on dedicated 
resources for the entire surveillance period existed both before and 
after the passage of CALEA. Neither commenter suggests that they no 
longer exist. In any event, as we stated in the Supplement, the Final 
Notice is intended to be technology neutral. It provides carriers with 
an estimated number or surveillances, and relies upon them to implement 
an appropriate method of accommodating them. Nothing in the Final 
Notice would

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preclude a carrier from meeting the requirements by using a ``dial-
out'' or any other non-dedicated-resource method. Indeed, such systems 
have substantial benefits for law enforcement and the carrier, and they 
largely eliminate any incremental burden or expense which might be 
imposed on a carrier in accommodating multiple same-day surveillances 
in accordance with the capacity requirements.
    Both commenters conclude with a contention that new capacity 
requirements should be established, and that, instead of using counties 
or market service areas, the FBI should state requirements by city 
(MCI, 5) or by switch (USTA, 8). These points are well beyond the scope 
of the issues addressed in the Supplement and will not be further 
considered herein.

B. Comments Regarding the Breakdown of Capacity Requirements by Type of 
Surveillance

    Only Verizon and USTA submitted any comments regarding the FBI's 
proposed breakdown of capacity requirements by type of surveillance. 
Verizon supports the FBI's proposal, observing that it ``usefully 
refines the capacity requirements.'' (Verizon, 1).\2\ We agree. USTA 
states that it opposes the breakdown, but appears to misconstrue the 
FBI's proposal.
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    \2\ Verizon also comments that the Supplement ``does not provide 
needed guidance concerning the manner in which carriers should 
distribute the countywide CALEA capacity among multiple switches 
that serve that county.'' (Verizon, 1). USTA makes a similar 
comment. (USTA, p. 8). The per-switch distribution of the capacity 
requirements is beyond the scope of the Supplement. However we 
observe that the FBI has already provided guidance as to this issue 
in the Final Notice of Capacity, noting in particular that ``the 
interception capacity requirement within each wireline or wireless 
geographic area can be applied and capacity distributed at the 
discretion of the carrier.'' See 63 FR 12232.
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    USTA first states that: ``the FBI's proposed formula sounds 
mathematically logical, [but] it is not based on concrete evidence to 
support its assumption that the proportion of communications 
interceptions declines as the total number of interceptions rises.'' 
(USTA, p. 7). Based on that contention, USTA concludes that ``where 
criminal activity is least likely to occur, carriers should be required 
to have less capacity for electronic surveillance.'' (USTA, p. 8).
    We have considered these points and concluded that they reflect a 
misunderstanding of the proposed breakdown. As explained in the 
Supplement, the FBI sought to determine what portion of the capacity 
requirements stated in the Final Notice of Capacity represented 
communications interceptions, rather than other types of surveillance. 
See 68 FR 68118. As further explained, we made such determination 
through a re-examination of the same survey data used by the FBI to 
form the capacity requirements in the Final Notice of Capacity. Id. 
That examination revealed that the ``percentage of communications 
interceptions tended to decrease as the total historical experience 
increased.'' Id. In other words, we found by reviewing the data that as 
the total number of surveillances that had historically been conducted 
within a region increased, the proportion of that number that 
represented communications interceptions (rather than pen registers and 
traps and traces) decreased. Hence, USTA's comment that the FBI's 
conclusion was ``not based on concrete evidence'' is incorrect; it was 
appropriately based on the evidence of the same survey data from which 
the capacity requirements published in the Final Notice were derived.
    Moreover, USTA's comment that carriers should generally have lower 
capacity requirements ``where criminal activity is least likely to 
occur'' is inapposite. CALEA does not direct the FBI to determine a 
likelihood of criminal activity in forming capacity requirements. 
However, because the requirements were based on a historical survey of 
the number of surveillances occurring within specific geographic areas, 
the capacity requirements are in fact lower in regions where the 
historical number of surveillances is lower. As explained in the Final 
Notice, and in the Supplement, the FBI published the capacity 
requirements based upon a survey of the historical number of 
interceptions conducted within certain geographic areas. Geographic 
areas where the historical number of interceptions were high, generally 
(and quite naturally) resulted in relatively higher capacity 
requirements. For example, the published historical experience figure 
for New York, New York is 318, and the actual capacity requirement is 
401. This may be compared with the historical experience figure for 
Greene County, New York, where relatively few surveillances were 
conducted during the survey period. The historical experience figure 
for Greene County is 2, and its actual capacity requirement is 3. 
Nothing in the Supplement, nor in the proposed breakdown, changes this 
relationship between the number of historical surveillances and the 
capacity requirement. Rather, the proposed breakdown provides 
additional guidance to carriers as to the maximum number of 
communications interceptions contained within capacity requirements.

III. Conclusion

    For the reasons stated in the Supplement for the Purpose of 
Responding to Remand, and having considered the comments submitted in 
response thereto, the FBI hereby adopts the Supplement as final, 
without change.

IV. Applicable Administrative Procedures and Executive Orders

A. Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. requires the 
preparation of an initial regulatory flexibility analysis whenever an 
agency is required by law ``to publish general notice of proposed 
rulemaking for any proposed rule.'' 5 U.S.C. 603(a). This publication 
provides our response to the comments received on the Supplement for 
Purposes of Responding to Remand [Supplement] which was published 
pursuant to instructions of the Court of Appeals in order to provide 
further explanation and guidance regarding the Final Notice of Capacity 
issued pursuant to CALEA, 47 U.S.C. 1003. In this publication, we are 
not republishing either the Final Notice nor the Supplement. Therefore, 
we are not changing either the Final Regulatory Flexibility Analysis 
provided with the Final Notice nor the estimates of the number of small 
entities provided in the Supplement. We are not republishing the Final 
Notice, nor changing the existing numerical capacity requirements 
stated therein. We therefore find that there will be no significant 
economic impact on small businesses as a result of this publication. 
The FBI is unaware of any rules which would overlap, duplicate or 
conflict with this publication or the statements therein.

B. Executive Order 12866: Regulatory Planning and Review

    This publication has been drafted and reviewed in accordance with 
Executive Order 12866. The FBI has determined that this publication 
does not constitute a ``significant regulatory action'' in accordance 
with that Order. In particular, we had already determined that the 
Final Notice of Capacity and the Supplement did not meet the criterion 
for a ``significant regulatory action'' and that they would not result 
in an annual impact on the economy in excess of $100,000,000, nor would 
they economically impact State, local or

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tribal governments. 63 FR 12218, 12220; 68 FR 68112, 68120. This 
publication does not alter the economic analysis contained in either 
the Final Notice or the Supplement.

C. Executive Order 13132: Federalism

    This publication will not have a substantial direct effect of the 
States, on the relationship between the national Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this publication does not have any 
federalism implications that warrant preparation of a federalism impact 
statement.

D. Executive Order 12988: Civil Justice Reform

    This publication meets the applicable standards set forth in 
sections 3(a) and 3(b) of Executive Order 12988, Civil Justice Reform.

E. Unfunded Mandates Reform Act of 1995

    We determined in both the Final Notice of Capacity and in the 
Supplement that neither would result in the expenditure by State, local 
or tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, nor would they significantly or 
uniquely affect small governments. This publication only provides 
further a response to comments received on the Supplement and adopts 
the Supplement as final without change. Therefore, no actions deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995, 2 U.S.C. 1532(a).

F. Small Business Regulatory Enforcement Fairness Act of 1996

    This publication is not a major rule as defined by the Small 
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. We 
determined in both the Final Notice of Capacity and in the Supplement 
that neither would: have an annual effect on the economy of 
$100,000,000 or more; cause a major increase in costs or prices; or 
result in a significant adverse effect on competition, employment, 
investment or productivity, and innovation, or on the ability of the 
United States-based companies to compete with foreign-based companies 
in domestic and export markets. This publication only provides further 
a response to comments received on the Supplement and adopts the 
Supplement as final without change.

G. Paperwork Reduction Act

    This publication contains no information collection or record-
keeping requirements under the Paperwork Reduction Act, 44 U.S.C. 3501 
et seq.

    Dated: November 15, 2006.
Elaine N. Lammert,
Deputy General Counsel, Federal Bureau of Investigation.
 [FR Doc. E6-21426 Filed 12-14-06; 8:45 am]
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