Implementation of the Communications Assistance for Law Enforcement Act

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CC Docket No. 97-213; FCC 99-184]

Implementation of the Communications Assistance for Law

Enforcement Act

AGENCY: Federal Communications Commission

ACTION: Final rule; reconsideration

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SUMMARY: This decision revises rules previously adopted to implement

sections of the Communications Assistance for Law Enforcement Act. In

particular, the Commission eliminates the requirement that

telecommunications carriers retain records of call content or

associated call-identifying information of any unauthorized or

authorized interceptions. This decision also eliminates the ten-year

retention requirement for such material regarding unauthorized

interceptions. Instead, carriers must maintain their certification of

such call intercepts for a reasonable period of time. The action is

taken to make the rules more in keeping with Congressional intent. This

decision adopts modified information collections subject to the

Paperwork Reduction Act of 1995 (PRA). The general public and other

Federal agencies are invited to comment on the proposed or modified

information collections contained in this proceeding.

DATES: These rules contain information collections that have not been

approved by OMB. The Commission will publish a document in the Federal

Register announcing the effective dates of these rules. Public and

agency comments are due on the information collections November 29,

1999.

FOR FURTHER INFORMATION CONTACT: Thomas Wasilewski, 202-418-1310. For

further information concerning the information collections contained in

this Report and Order, contact Les Smith, Federal Communications

Commission, Room 1A-804, 445 12th Street, S.W., Washington, DC 20054,

or via the Internet at [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Order

on Reconsideration (Order) in CC Docket No. 97-213; FCC 99-184, adopted

July 16, 1999, and released August 2, 1999. The complete text of this

Order is available for inspection and copying during normal business

hours in the FCC Reference Information Center, Courtyard Level, 445

12th Street, S.W., Washington, DC, and also may be purchased from the

Commission's copy contractor, International Transcription Services

(ITS, Inc.), CY-B400, 445 12th Street, S.W., Washington, DC.

Synopsis of the Order on Reconsideration

1. The Commission, on its own motion, adopts an Order on

Reconsideration (Order) in CC Docket No. 97-213, regarding

implementation of the Communications Assistance for Law Enforcement Act

(CALEA). This Order is a limited reconsideration of the Commission's

Rule, adopted in the Report and Order (R&O) in this proceeding. (FCC

99-11.) regarding obligations placed upon carriers to maintain secure

and accurate records or wiretap, pen register, and trap and trace

interceptions.

2. Section 64.2104(b) of the Commission rules adopted in the R&O,

erroneously required carriers to retain records of call information and

unauthorized interceptions, including the content of such

interceptions, for ten years, and erroneously required carriers to

retain records of content of authorized interceptions. The Commission

thus eliminates these requirements and instead finds that carriers

should maintain the certification, as described in Sec. 64.2104(a) for

``a reasonable period of time.''

Administrative Matters

Supplemental Regulatory Flexibility Act Statement

3. As required by the Regulatory Flexibility Act (RFA),1

an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in

the Notice of Proposed Rulemaking (NPRM) 2 in this

proceeding implementing the Communications Assistance for Law

Enforcement Act (CALEA or the Act). The Commission sought written

public comment on the proposals in the NPRM, including the IRFA. A

Final Regulatory Flexibility Analysis (FRFA) conforming to the RFA was

then incorporated into the Report and Order implementing section 105 of

the Act. The Commission's Supplemental Final Regulatory Flexibility

Analysis (Supplemental FRFA) in this Order reflects revised or

additional information to that contained in the FRFA. The Supplemental

FRFA is thus limited to matters raised in response to the R&O and

addressed in this Reconsideration. This Supplemental FRFA conforms to

the RFA.3

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\1\ See 5 U.S.C. 603. The RFA, 5 U.S.C. 601 et seq., has been

amended by the Contract with America Advancement Act, Public Law No.

104-121, 110 Stat. 847 (1996) (CWAAA). Title II of the CWAAA is the

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

\2\ 62 FR 63302, November 28, 1997.

\3\ See 5 U.S.C. 604.

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(a) Need for and Purpose of this Action

4. The actions taken in this Order are in response to letters

requesting clarification of the rules that erroneously require carriers

to retain records of call content or associated call-identifying

information of any unauthorized or authorized interceptions. The

limited revisions made in the Order are intended to clarify the rules

adopted in the R&O by eliminating these erroneous requirements.

(b) Summary of the Issues Raised by Public Comments Made in Response to

the FRFA

5. No comments were received in direct response to the FRFA, but

the Commission received several letters requesting clarification of the

rules adopted in the R&O. After release of the R&O, but prior to

publication of the rules in the Federal Register, the Commission

received letters from CTIA and AirTouch stating that Sec. 64.2104(b) of

the new rules erroneously requires carriers to retain records of call-

identifying information and unauthorized interceptions, including the

content of such interceptions, and erroneously requires carriers to

retain records of content of authorized interceptions. Subsequently,

the Federal Bureau of Investigation (FBI) sent the Commission a letter

supporting the position taken by CTIA and AirTouch on this issue,

stating that those requirements ``are not mandated by section 105 of

CALEA and that, in some respects, compliance with these requirements

could cause a carrier to violate federal electronic surveillance

laws,'' since those laws do not require or entitle carriers to acquire

and retain such information, but merely direct them, according to

lawful court orders and other authorizations, to provide the technical

assistance necessary to aid law enforcement in making intercepts.

(c) Description and Estimates of the Number of Entities Affected by

This Report and Order

6. A Final Regulatory Flexibility Analysis was incorporated into

the R&O. In that analysis, the Commission described in detail the small

entities that might be significantly affected by the rules adopted in

the R&O. Those entities may be found in a number of wireless services

including: telephone companies, wireline carriers and service

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providers, local exchange carriers, interexchange carriers, competitive

access providers, wireless radiotelephone carriers, cellular licensees,

mobile service carriers, broadband personal communications service, SMR

licensees, resellers, pay telephone operators, cable services or

systems, and other pay services. In this Order, the Commission hereby

incorporates by reference the description and estimate of the number of

small entities from the previous FRFA in this proceeding.

7. The rule changes in this Order will affect small entities as

indicated in the FRFA presented in the R&O. To the extent that a rule

change here affects a particular wireless service, our estimates

contained in the R&O, remain valid as to the size of those services.

(d) Description of Projected Reporting, Recordkeeping and Other

Compliance Requirements

8. In this Order, the Commission adopts no new rules and impose no

additional reporting, recordkeeping or other compliance requirements.

The Commission does, however, adopt specific rule changes clarifying

that we no longer find telecommunications carriers should retain the

content or call-identifying information of any interceptions of

communications. Moreover, the Commission no longer finds the 10 year

record retention requirement to be necessary, since it was originally

implemented in order to remain consistent with the record retention

requirement in 18 U.S.C. 2518(8)(a) with regard to content of

authorized call intercepts. Since the Commission is no longer requiring

carriers to maintain records of content or call-identifying

information, we find it more appropriate to allow carriers to maintain

the certification for a ``reasonable period of time''. Thus, we are

making conforming changes in Sec. 64.2104(b) of the Commission Rules by

modifying the rules expressed in paragraph (f) of new Sec. 64.2103 and

paragraph (b) of new Sec. 64.2104, as they appear in the R&O, and

replace them with a revised final Secs. 64.2103(f) and 64.2104(b) of

the Commission's Rules, as set forth in this Order.

(e) Steps Taken to Minimize Significant Economic Impact on Small

Entities, and Significant Alternatives Considered

9. The analysis of the Commission's efforts to minimize the

possible significant economic impact on small entities as described in

the FRFA, is unchanged by the Order, save that the removal of the

recordkeeping obligations described in section (d) above will result in

a reduction of the recordkeeping burden for all entities affected by

the R&O and this Order.

(f) Report to Congress

10. The Commission shall send a copy of this Order, including this

Supplemental FRFA, in a report to Congress pursuant to the Small

Business Regulatory Enforcement Fairness Act of 1996, see 5 U.S.C.

801(a)(1)(A). In addition, the Commission shall send a copy of this

Order, including this Supplemental FRFA, to the Chief Counsel for

Advocacy of the Small Business Administration. A copy of this order and

Supplemental FRFA (or summaries thereof) will also be published in the

Federal Register.

Ordering Clauses

11. Accordingly, it is ordered that, pursuant to 47 CFR 1.108,

(4)(i) and 4(j), and section 229 of the Communications Act of 1934, as

amended, 47 U.S.C. 154(i), 154(j), and 229, and section 105 of the

Communications Assistance for Law Enforcement Act, 47 U.S.C. 1004,

Sec. 64.2104(b) of the Commission's rules, 47 CFR 64.2104(b), is

modified as set out in this decision.

12. It is further ordered that the rules set forth in this decision

will become effective 90 days after publication in the Federal

Register.

13. It is further ordered that the Commission's Office of Public

Affairs, Reference Operations Division, shall send a copy of this Order

on Reconsideration, including the Supplemental Final Regulatory

Flexibility Analysis, to the Chief Counsel for Advocacy of the Small

Business Administration.

Paperwork Reduction Act

14. This Order contains a modified information collection. The

Commission, as part of its continuing effort to reduce paperwork

burdens, invites the general public to comment on the possible

information collections contained in this Order, as required by the

Paperwork Reduction Act of 1995, Public Law No. 104-13. Written

comments must be submitted by the public and by other Agencies on the

proposed information collections on or before November 29, 1999.

Comments should address: (1) 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; (2) the accuracy of the Commission's burden estimates; (3)

ways to enhance the quality, utility, and clarity of the information

collected; and (4) 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: 3060-0809.

Title: Communications Assistance for Law Enforcement Act, Order on

Reconsideration.

Form No.: N.A.

Type of Review: Modification of Existing Collection.

Respondents: Business and other for-profit and non-profit

institutions.

Number of Respondents: 5,000.

Estimated Time Per Response: 25 hours.

Needs and Uses: This modification decreases the recordkeeping

burden on carriers imposed in the R&O, to remain constistent with the

record retention requirement in 18 U.S.C. 2518(8)(a).

List of Subjects in 47 CFR Part 64

Communications common carriers, Reporting and recordkeeping

requirements.

Federal Communications Commission.

Magalie Roman Salas,

Secretary.

Rule Changes

Part 64 of Title 47 of the Code of Federal Regulations is amended

as follows:

PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

1. The authority citation for Part 64 continues to read as follows:

Authority: 47 U.S.C. 151, 154, 201, 202, 205, 218-220, and 332

unless otherwise noted. Interpret or apply 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. Section 64.2103 is amended by revising paragraph (f) to read as

follows:

Sec. 64.2103 Policies and procedures for employee supervision and

control.

* * * * *

(f) Include, in its policies and procedures, a detailed description

of how long it will maintain its records of each interception of

communications or access to call-identifying information pursuant to

Sec. 64.2104.

3. Section 64.2104 is amended by revising paragraph (b) to read as

follows:

Sec. 64.2104 Maintaining secure and accurate records.

* * * * *

(b) A telecommunications carrier shall maintain the secure and

accurate records set forth in paragraph (a) for a

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reasonable period of time as determined by the carrier.

* * * * *

[FR Doc. 99-25145 Filed 9-27-99; 8:45 am]

BILLING CODE 6712-01-P