Communications Assistance for Law Enforcement Act

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

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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

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.

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]

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