November 13, 1995

Telecommunications Industry Liaison Unit
Federal Bureau of Investigation
P.O. Box 220450
Chantilly, VA 22022-0450

Re: Initial FBI Notification of Law Enforcement Capacity Requirements as Mandated in the Communications Assistance for Law Enforcement Act

These comments are submitted on behalf of the Electronic Privacy Information Center ("EPIC") in response to the Federal Bureau of Investigation's initial notification of "law enforcement capacity requirements" for electronic surveillance as mandated in Section 104 of the Communications Assistance for Law Enforcement Act ("CALEA"). Initial Notice and Request for Comments, 60 Fed. Reg. 53643 (October 16, 1995). The Bureau contends that its Federal Register announcement "serves as the initial notice of the government's actual and maximum capacity requirements." Id. As is set forth below, EPIC believes that 1) the notice fails to comply with the notification and public accountability provisions of the statute; and 2) the Bureau's proposed capacity requirements are not supported by adequate documentation. For these reasons, we submit that the FBI should rescind the initial notice and issue revised capacity requirements that comport with CALEA's mandate.


CALEA was enacted in the final days of the 103d Congress despite the FBI's failure to publicly substantiate its claims that new digital telephony technologies are hampering law enforcement's ability to conduct court-authorized electronic surveillance under the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Specifically, the Bureau refused to disclose to the public the details of an "informal survey" that purported to document technological problems encountered by federal and state law enforcement agencies. See, e.g., Electronic Privacy Information Center v. Federal Bureau of Investigation, 865 F. Supp. 1 (D.D.C. 1994) ("[i]n lobbying for the new wiretapping law, the FBI chose to only release a summary" of the survey). Notwithstanding the Bureau's refusal to release the details of its survey, some relevant statistical information was disclosed. In Congressional testimony on March 18, 1994, FBI Director Freeh cited "instances in which law enforcement agencies were precluded due to technological impediments from fully implementing authorized electronic surveillance." He asserted that the Bureau's survey had at that time "identified 91 such incidents, 33% of which involved cellular systems (11% were related to the limited capacity of cellular systems to accommodate a large number of intercepts simultaneously) ..." House Report 103-827. A month later, the Bureau presented new survey information to the House and Senate Judiciary Subcommittees detailing "183 instances (including the original 91) where the FBI, State or local agencies had encountered problems." Id. As later summarized in the legislative history of CALEA, the reported instances were described as follows:


Technology-based problems encountered by Federal, State, and local law enforcement agencies

  Total problems.......................................     183

    Cellular port capacity.............................      54

    Inability to capture dialed digits contemporaneous 
      with audio.......................................      33

    Cellular provider could not intercept long-distance 
      calls (or provide call setup information) to or 
      from a targeted phone............................       4

    Speed dialing/voice dialing/call waiting...........      20

    Call forwarding....................................      10

    Direct inward dial trunk group (provider unable to 
      isolate target's communications or provide call 
      set-up information to the exclusion of all other 
      customers).......................................       4

    Voice mail (provider unable to provide access to 
      the subject's audio when forwarded to voice mail 
      or retrieve messages)............................      12

    Digital Centrex (provider unable to isolate all 
      communications associated with the target to 
      the exclusion of all others).....................       4

    Other (including other calling features such as 
      Call Back; and provider unable to: provide trap 
      and trace information; isolate the digital 
      transmissions associated with a target to the 
      exclusion of all other communications; 
      comprehensively intercept communications and 
      provide call set-up information).................      42


The Bureau failed to make publicly available any contextual information against which these figures could be measured. For instance, the FBI did not identify 1) the time period covered by the survey; 2) the total number of interceptions conducted by the reporting agencies during the reporting period; 3) the percentage of interceptions that sought to target cellular calls; nor 4) the geographic areas in which the reported problems occurred. In the absence of such critical information, the figures provided by the Bureau were statistically meaningless and the nature and extent of the claimed "technology-based problems" remained unknown to the public.

CALEA's Notice Requirements

Section 104 of CALEA provides, in pertinent part, that the Attorney General shall publish in the Federal Register

(A) notice of the maximum capacity required to accommodate all of the communication interceptions, pen registers, and trap and trace devices that the Attorney General estimates that government agencies authorized to conduct electronic surveillance may conduct and use simultaneously after the date that is four years after the date of enactment of this chapter; and

(B) notice of the actual number of communication interceptions, pen registers, and trap and trace devices, representing a portion of the maximum capacity set forth under subparagraph (A), that the Attorney General estimates that government agencies authorized to conduct electronic surveillance may conduct and use simultaneously after the date that is four years after the date of enactment of this chapter.

Pub. L. 103-414, Sec. 104(a)(1) (emphasis added).

The legislation thus requires the Attorney General /1/ to provide a numerical estimate of law enforcement's anticipated use of electronic surveillance in late 1998. The legislative history makes this plain:

The maximum capacity relates to the greatest number of intercepts a particular switch or system must be capable of implementing simultaneously. The initial capacity relates to the number of intercepts the government will need to operate upon the date that is four years after enactment.

House Report 103-827 (emphasis added). By mandating the publication of numerical estimates of law enforcement surveillance activity, Congress intended CALEA's notice requirements to serve as "mechanisms that will allow for Congressional and public oversight. The bill requires the government to estimate its capacity needs and publish them in the Federal Register." Id. Unfortunately, the manner in which the Bureau has presented the capacity requirements in its Federal Register notice negates the possibility of meaningful public oversight.

The Bureau's Notice does not
Satisfy the Statutory Requirements

1. The FBI's "percentage" approach does not give
the public meaningful notice of the level of
anticipated law enforcement surveillance activity.

Contrary to the clear mandate of CALEA, the FBI's Federal Register notice fails to identify the "actual number of communications interceptions" that the Bureau estimates will be needed by the end of 1998. Instead, the capacity requirements are "presented as a percentage of the engineered capacity of the equipment, facilities, and services that provide a customer or subscriber with the ability to originate, terminate, or direct communications." 60 Fed. Reg. 53643. The notice states that

[p]ercentages are being used rather than fixed numbers due to the dynamics and diversity of the telecommun-ications industry. The use of percentages allows telecommunications carriers the flexibility to adjust to changes in marketplace conditions or changes in the number of subscribers, access lines, equipment, facilities, etc., and still know the required level of capacity.


Unfortunately, the FBI's "percentage" approach to capacity requirements allows neither telecommunications carriers nor the public to "know the required level of capacity." Indeed, the percentages contained in the Federal Register notice (e.g., maximum capacity of one percent of "engineered capacity" for geographic areas falling within Category I) have already engendered a great deal of public confusion concerning the Bureau's proposed requirements and their impact on the privacy of personal communications.

In a front page article on November 2, the New York Times interpreted the Bureau's notice as requiring "the capacity to monitor simultaneously as many as one out of every 100 phone lines." Asked about the issue at a press briefing later that day, Deputy Attorney General Jamie S. Gorelick said "there appears to be some misunderstanding or miscommunication as to the implications of what is contained in [the Federal Register] notice." In a letter to House Judiciary Committee Chairman Henry Hyde, Director Freeh asserted that, "We have not and are not asking for the ability to monitor one out of every 100 telephone lines or any other ridiculous number like that. ... Information supplied by the FBI was simply applied in a manner not intended to reach erroneous conclusions."

2. The FBI's capacity requirements are not supported by
data sufficient to facilitate meaningful public comment.

EPIC submits that consideration of an issue of this magnitude should not be clouded by misunderstandings, miscommunications and erroneous conclusions. If the Congressional mandate for "public oversight" of the FBI's implementation of CALEA is to be realized, it is incumbent upon the Bureau to make available additional information concerning its proposed capacity requirements. At a minimum, such information would include:


  • the actual number of communication interceptions, pen registers, and trap and trace devices that the Bureau estimates will be needed by the end of 1998;


  • the actual number of communication interceptions, pen registers, and trap and trace devices conducted during the past five years (as opposed to the number of court orders as reported by the Administrative Office of the U.S. Courts);


  • the highest number of "simultaneous pen register, trap and trace, and communication interceptions" conducted on the "equipment, facilities, or services" of a telecommunications carrier for each of the past five years; and


  • data concerning the "historical baseline of electronic surveillance activity" and the Bureau's analysis of that data, as referenced in the Federal Register notice.

We note that the only publicly-available information concerning law enforcement's claimed capacity problems is contained in the data table reproduced above. The table indicates that only 54 capacity-related instances were reported in the Bureau's national survey. Given that data, it is difficult to understand the need to simultaneously monitor more than 30,000 telephone lines, as we construe the published "maximum capacity" requirements to mandate./2/

In the absence of relevant data, the Bureau's proposed capacity requirements will remain the subject of public misunderstanding. Only after the specified information has been provided, preferably through publication in the Federal Register, can the public provide informed and meaningful comments. We urge the Bureau to rescind its current notice and to re-issue capacity requirements that are in keeping with CALEA's mandate and are supported by adequate documentation.

We appreciate your consideration of our views.




Marc Rotenberg, EPIC Director
David L. Sobel, EPIC Legal Counsel



Sen. Arlen Specter
Sen. Patrick Leahy
Rep. Henry Hyde
Rep. Bob Barr




1 The Attorney General has delegated the government's implementation responsibilities under CALEA to the FBI. 28 CFR 0.85 (o).



2 There are approximately 150 million phone lines in the United States. "Telephone Lines and Offices" (Federal Communications Commission, Industry Analysis Division, Common Carrier Bureau, October 1995). Recent FBI statements reported in the news media indicate that "engineered capacity" (as used in the Federal Register notice) equals 10 percent of telephone lines (or 15 million). We understand the notice to provide that approximately 12.5 percent of those lines (or 1,875,000) will fall within Category I (.01 capacity), meaning that 18,750 lines could be simultaneously monitored; approximately 12.5 percent of lines (or 1,875,000) will fall within Category II (.005), meaning that 9,375 lines could be simultaneously monitored; and that 75 percent of lines (or 1,125,000) will fall within Category III (.0025), meaning that 2,812 could be simultaneously monitored. Thus, the total maximum simultaneous surveillance capacity nationwide would be 30,937 lines.

This estimate assumes that the Bureau is correct in asserting that "engineered capacity" equals 10 percent of telephone lines. In any event, that figure is likely to rise significantly through technological enhancements to the network, meaning that the FBI's proposed capacity requirements would enable a greater level of simulatneous monitoring in the coming years.