[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 jboley@fcc.gov, and to Timothy Fain,
OMB Desk Officer, 10236 NEOB, 725--17th Street, N.W., Washington, DC
20503 or via the Internet to fain__t@al.eop.gov.
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 jboley@fcc.gov.
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
[[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
