Legal issues of Third-Party Payment in Taiwan
Although third-party payment is already one of the most popular ways to do the payment online in many countries, for example, Alipay of China and Paypal of USA, third-party payment in Taiwan is just about to start. For these days, the legislation of third-party payment has become a highly debated issue. However, due to many reasons, the legislation of third-party payment eventually has not been realized. And in fact, the third-party payment in Taiwan is not mature yet. A third-party payment system in Taiwan is unable to deposit stored value in advance. This is one of the basic functions of third-party payment system abroad, such as Alipay in China and Paypal in USA. Mainly, what third-party payment provides in Taiwan is money transmission based on real trade.
1. Latest progress of third-party payment in Taiwan.
(1)Credit card payment for third-party payment system.
Recently, third-party payment has a breakthrough development. According to the resolution of the meeting “Obstacles of using credit card in third party payment” held by Executive Yuan in September this year, Financial Supervisory Commission has made the commitment that the third party payment is allowed to be a “contracted merchant” under “Regulations Governing Institutions Engaging in Credit Card Business”, and personal entity or small business which is not provided with the qualification of “contracted merchant” are allowed to accept credit card payment though third party payment system. This is a very important progress in third-party payment in Taiwan. It means credit card payment is available for C2C transaction now. This will improve the safety of C2C transaction and reduce the quantity of fraud transaction. In other way, boost the prosperity of E-commerce.
(2)Evaluation Requirements for Data Processing Services Industry Performing Trans-border Internet Transaction.
In response to the Central Bank’s request, MOEA (Ministry of Economic Affairs) approved and announced the “Evaluation Requirements for Data Processing Services Industry Performing Trans-border Internet Transaction” on October 3rd, 2012. Any Data Processing Services Industry Performing Trans-border Internet Transaction would like to obtain the qualification as a mandatory under Article 8 of “Regulations Governing the Declaration of Foreign Exchange Receipts and Disbursements or Transactions”, should pass the evaluation according to the “Evaluation Requirements for Data Processing Services Industry Performing Trans-border Internet Transaction”, and get the compliance certification.
The “Evaluation Requirements for Data Processing Services Industry Performing Trans-border Internet Transaction” has set up several requirements for a business which would like to run the payment service for trans-border internet transaction. Mainly, basic requirements are as the followings.
1-2-1 The applying data processing service enterprise should be a limited company or a company limited by shares.
1-2-2 The applying data processing service enterprise should open a special purpose deposit account to deposit the entire transmitting amount received from consumers. And the transaction of this account should be only based on the consumers’ directions of money transmitting.
1-2-3 Users of the third-party payment service provided by the data processing service enterprise should register for the first time usage. And the user’s name, birth and ID number are required for registration. The applying data processing service enterprise has the liability to check the reality of the information provided.
1-2-4 The contract between the data processing service enterprise and the user should be in writing. If the contract is performed in electronic way, it should follow the requirement of “in writing” according to Article 4 of “Electronic Signatures Act”. In addition, the contract should contain the mandatory articles about foreign exchange declaration listed in the “Evaluation Requirements for Data Processing Services Industry Performing Trans-border Internet Transaction”.
1-2-5 The data processing service enterprise should be equipped with sound information security system and operating regulations, comply with “Personal Information Protection Act” and the related directives, join ECTSA (E-commerce Trust Security Alliance), and get the ISO27001 certificate or PCI-DSS validation.
1-2-6 The data processing service enterprise should keep detailed transaction information for at least 5 years.
1-2-7 The data processing service enterprise should set up money laundering prevention operating regulations, and provide money laundering prevention employee training annually.
Once MOEA receives the application, MOEA will set up a special team, which assembles legal professionals, information engineering experts and financial experts, to conduct the evaluation. The compliance certification of the evaluation will be valid for 5 years. During these 5 years, the data processing enterprise has the duty to accept the annual examination and non-timed examination by MOEA.
2.Three-Party Legal Relationship under Third-Party Payment
The nature of a third-party payment service is “service of payment collection and forwarding”. Generally, payment collection and forwarding refers to the transfer of a transaction payment performed by a third party in its role of assisting the buyer and the seller. The current practice in Taiwan of making payment to and collecting product from a convenient store pursuant to online transaction or of paying for product upon delivery by shipping company is a type of “payment collection and forwarding” business.
In a relationship of payment collection and forwarding service, the legal relationship between the buyer and the payment collector/forwarder is a “contract of mandate” under Article 528 of the Civil Code. Refer to Article 8 of the Regulations Government the Use of Uniform Invoices: “When a business entity is engaged to handle collection and payment on behalf of another party, if there is no difference between the amount collected and the amount paid, and the purchaser specified on the payment receipt voucher is the engaging party, then the business entity may deliver the voucher to the engaging party and is exempt both from issuing a uniform invoice and from including the payment as a sales amount.”. Article 18-2 of the Profit Seeking Enterprise Income Tax Audit Standard also has similar stipulations.
As to whether or not a contract of mandate is formed between the seller and the payment collector/forwarder, depends on the agreement between the parties. If it is agreed that the buyer has completed payment when the payment collector/forwarder receives the fund, then the payment collector/forwarder receives the fund on behalf of the seller and a contract of mandate is formed. Under the contract of mandate, the seller grants the payment collector/forwarder the right of agency and the right of processing. Generally speaking, it is deemed that when the buyer pays the fund to the payment collector/forwarder, the buyer has completed the obligation of payment. Therefore, both the buyer and the seller form a contract of mandate with the payment collector/forwarder and grant the right of agency under such contract of mandate.
Diagram 1 Three-party relationship diagram under collection/forwarding of transaction payment
Source: Prepared by author
The payment collector/forwarder under online transaction acts as the agent of the buyer and the seller at the same time with regard to the act of payment and collection. This constitutes the legal issue of “acting as agent for both parties” under Article 106 of the Civil Code. However, the payment collector/forwarder performs the contract of sale and purchase for the buyer and the seller. Therefore the exception provided under Article 106 of the Civil Code is applicable.
3.Payment Custody Mechanism under Third-Party Payment
(1)Overview
The important value of a third-party payment mechanism is that it provides a credit guarantee between the buyer and seller. Through a third-party payment organization, the buyer receives the merchandize and then sends an instruction to the third party payer for the price previously provided to the third party payer to be forwarded to the seller. Although the buyer and the seller cannot verify each other’s creditworthiness and the quality of the merchandize face-to-face, through third party payment, the buyer can be assured that the merchandize will be received after the price is paid. The buyer can even be assured that he/she will receive the merchandize that he/she is satisfied with. For example, in “Alipay”, the after shopping, the consumer pays the transaction price to Alipay. Only when the consumer replies with “production received” will Alipay forward the money to the seller.
So “third-party payment service” helps activate E-commerce and is especially helpful in C2C transactions. This is one of the important features that differentiate “third-party payment service” from “Internet banking”. Therefore, although the Central Bank of Mainland China introduced the function of “Super Internet Bank” in 2009, consolidating the consultation and account transfer systems of many banks, it is generally considered that this did not have a strong impact on the third-party payment service industry which is already flourishing in Mainland China, because it does not provide value-added services, such as a guarantee and delayed payment provided by third-party payment service. Although third-party payment service provides account transfer service, absorbing part of the functions of Internet banking, it also created new business opportunities for the banks. In reference to the experience of Mainland China, the tasks are divided between third-party payers and banks as follows:
Source: Xi-Song Zhang, Choice of Development Model for Third-Party Payment in China – From the Perspective of Full Intervention by Commercial Banks, Review by Xi’An University of Finance and Economics, Volume 22, Book 2, Page 46 (March 2009).
So the service provided by third-party payment and the service provided by Internet banking overlap to a certain degree. Both perform the function of fund transmission. However, instead of thinking that the two as competitors, it is better to think of them as a cooperative.
(2)Relevant Legal System in Taiwan
The feature of the above-described third-party payment is that the third party holds the property for the benefit for others until the satisfaction of certain conditions. A similar legal system in Taiwan is “trust”. In accordance with Article 1 of the Trust Act: “For the purposes of this Law, the term "trust" refers to the legal relationship in which the settler transfers or disposes of a right of property and causes the trustee to administer or dispose of the trust property according to the stated purposes of the trust for the benefit of a beneficiary or for a specified purpose.”. However, in accordance with Article 2 of the Trust Act, a trust must be done through a contract of trust. What is different from the contract of mandate formed under the payment collection/forwarding described above is that, in a contract of trust, the parties must specify the purpose of the trust in the contract. Otherwise, the contract of a trust is not formed. An exception is trust by declaration for the purpose of public interest under Article 71 of the Trust Act. Below we discuss the structure and feasibility of providing third-party payment service through trust.
3-2-1Third-Party Payer Acts as Trustee
When a third-party payer acts as the trustee of under the contract of trust and the buyer that pays the price under an Internet transaction designates it as the principal and the beneficiary, a trust for self benefit is formed. It is a trust with a purpose. The purpose of the trust is to transfer the price of sale and purchase. The seller is also the beneficiary. According to the “principle of identified beneficiary” under the laws of Taiwan as long as the beneficiary is identifiable, even though many transactions may be formed with many sellers after the buyer registers to use third-party payment service, a contract of trust can still be formed. However, in accordance with Article 2 of the Trust Act, unless the principal has reservations in the contract of trust, the termination of a trust for the benefit of others is subject to the consent of the beneficiary. So it is simpler to process under a trust for one’s own benefit.
Diagram 2 Diagram of trust relationship under third-party payment (where the third-party payer is the trustee)
Source: Prepared by author
To form a contract of trust, in accordance with Articles 9 to 12 of the Trust Act, the fund entrusted by the service user to the third party to be forwarded becomes trust property and can be effectively segregated from bankruptcy. If the trustee is bankrupt, the trust property will not be included in the bankruptcy property, and the creditors of the trustee cannot enforce upon the trust property, providing more protection for the user of third-party payment service. Also, in accordance with Article 24, the principal shall manage the trust property and the principal’s own property separately. A monetary trust can be managed by keeping separate accounts. So if a contract of trust is formed under a contract of third-party payment service, it can ensure proper accounting of trust property by the service provider. Also, in accordance with Paragraph 2, Article 9, property right acquired by the trustee through the management, disposal, loss, destruction or other event of the trust property remains part of the trust property. Therefore, proceeds received from the deposit by third-party payer with the bank of any fund before it is forwarded become part of trust property and belong to the buyer, i.e., the principal and beneficiary.
Certain doubts as to whether the Trust Enterprise Act is applicable to third-party payment service provider. In accordance with Article 2 of the Trust Enterprise Act, “trust enterprise” referred to in this Act means an organization approved by the competent authority in accordance with this Act to operate trust activities. There are 4 targets regulated by the Trust Enterprise Act: Trust companies that operate trust activities with approval by the competent authority, banks they also operate trust activities, securities investment trusts, investment consulting businesses and securities dealers that also operate trust activities and trust investment companies. A third-party payer is not a trust enterprise approved by the Banking Bureau of the Financial Supervisory Commission. Therefore, the contract of trust formed under third-party payment service is a general trust under civil law and is subject to supervision by the court in accordance with Article 60 of the Trust Act. The court may select an inspector and impose other necessary disposition by order pursuant to the petition for inspection on trust activities filed by an interested party or a prosecutor.
However, the court has a role of passive supervision and does not have the general authority of supervision and management by the Bureau of Banking. Third-party payment is a service provided to unidentified members of the society. Including third-party payers into the system of financial supervision for trust will provide better protection for interest of the general public. Also, in accordance with Article 34 of the Trust Act, trust enterprises have the obligation of provisioning compensation reserves. No such obligation is imposed under general civil-law trust. So if third-party payers are included as trust enterprises, better protection will be available to the consumers.
Also in accordance with Article 19 of the Trust Enterprise Act, a trust contract must be done in writing. In case of an electronic document, requirements under Article 4 of the Electronic Signature Act must be met: “the content of the information can be presented in its integrity and remains accessible for subsequent reference, with the consent of the other party”. Under third-party payment service, the third-party payer must make payment in accordance with the user’s instructions. So the trust that is formed is “a trust where the trustee does not have discretion over utilization of trust property”, as referred to under Paragraph 2, Article 7 of the Enforcement Rules for Trust Enterprise Act. It is also “a monetary trust under specific centralized management and utilization” under Article 8 of the Enforcement Rules for Trust Enterprise Act.
However, in accordance with Article 9 of the Trust Enterprise Act: “A trust enterprise's name shall indicate the word, ‘trust.’ This rule does not apply to an entity which conducts a trust business concurrently with the approval of the Competent Authority.” If the third party payer adds the word “trust” in the company name, it will create a difference from the scope of business of third-party payment service. So an approval from the competent authority, the Bureau of Banking of the Financial Supervisory Commission, allowing third party payers to also operate the trust activity, seems to be a better solution.
3-2-2Bank Acts as Trustee
As mentioned above, in a payment collection/forwarding relationship, the underlying legal relationship between the third-party payer and buyer is a “mandate”. Under a separate relationship of mandate, the buyer can grant the third-party payer the right of agency to sign a contract of trust with the bank on behalf of the buyer. The bank will act as the trustee and the buyer will act as the principal and beneficiary. The third-party payer will be the agent of the principal. Same as above, the beneficiary can also be the seller here.
Under the current structure of the Trust Act of Taiwan, almost all rights that can be exercised by a principal can also be exercised by a beneficiary, including the rights under Articles 23, 24, 32, 35 and 65. Therefore, it is more convenient for a bank, with the qualification of trust enterprise, to serve as the trustee. However, trust related fees may be payable to the bank, raising the cost of third-party payment service. The relevant cost will most likely be transferred to the user of third-party payment service. The third-party payment service fee is generally paid by the seller, i.e., the payee. Under the structure where the third-party payer acts as the trustee, the relationship between the third-party payer and the bank is solely one between a depositor and a depository account. Therefore the third-party service provider does not need to pay any fee to the bank. It may even receive interest from the deposit, constituting proceeds from trust property which belong to the principal. So if the bank acts as the trustee, the cost of transaction flow is higher. On the other hand, it may obstruct the development of the industry. However, it is more consistent with the model of trust management.
Diagram 3 Diagram of trust relationship under third-party payment (bank being the trustee)
Source: Prepared by author
4.Conclusion
There is currently no legal restriction against simple payment collection and forwarding. The contract of mandate under the Civil Code can process the tri-party legal relationship (buyer, seller and payment collector/forwarder). The transaction guarantee for third-party payment and the mechanism of custody and delayed payment of price can be processed with the structure of trust. As mentioned above, under the structure of a trust, the third-party payer can act as the trustee and the bank can act as the principal (at which time the third-party payer represents the principal and signs a contract of trust with the bank on behalf of the buyer). The formation of trust ensures account management, avoiding improper utilization of the transaction price under custody. When the third-party payer is the trustee, a general civil-code trust is formed, which is only subject to inspection by court pursuant to petition by interested party or the judge. The supervision and management are more relaxed. However, third-party payment serves an unidentified public of society and has an extensive impact. It is suggested that the competent authority, the Financial Supervisory Commission, allows third-party payers to also operate the business of trust and include third-party payers into the scope of financial supervision. When the bank acts as the trustee, the transaction cost is higher. However, the supervision and management of its business activities under the current legal system is more complete. Currently, a more feasible way is when the bank serves as the trustee and the third-party payer serves as the agent of the principal. In the long term, it can be studied to open up for third-party payers to also operate Internet transaction trust business, acting as the trustee.
Third-party payment replaces bank’s fund settlement function to a certain extent. Contrary to the traditional industry of payment collection and forwarding, third-party payment provides the convenience of fund collection/payment function and can fall prey to money laundering criminal activities. For the purpose of protecting the consumers and prevention of money laundering crimes, it is indeed necessary to include third-party payment into legislative management. The priority focus of such control is to require that the operator possesses a sound corporate structure and financial status. The requirement regarding capital is different depending on the country. The flexible requirement of capital amount in the EU can be used as a reference. For smaller operators with lower transaction volumes, a lower capital amount should be required under flexibility. In 2011, the Internet shopping market in China was 773.5 billion CNY. The amount of Internet payment was approximately 70 billion CNY. In 2011, the Internet shopping market in Taiwan was only 562.7 billion NT Dollars. If the minimum capital amount required of third-party payment operators in China is applied to third-party payment operators in Taiwan, it would not be reasonable. We can refer to the US method and ask operators to take out insurance to lower the risk and avoid market monopoly or oligopoly due to high capital amount barrier, blocking full competition. With the capital amount requirement, it is highly possible that the operators will increase the amount of transaction processed in accordance with the development of E-commerce, creating the necessity to increase the capital. It is best to choose the form of limited stock companies in order to answer to capital placement requirement swiftly.
Regarding the issue of money laundering prevention, third-party payment institutions are currently not the “financial institutions” under Article 5 of the Money Laundering Prevention Act of Taiwan. However, it should be a “payment tool” under Article 9, with only an obligation to freeze the payment account and cooperate with investigation as required by prosecutors. At the same time of developing third-party payment services, the Bureau of Investigation of the Ministry of Justice should also develop a money laundering prevention reporting system for third-party payment services. In reference to the US legal system, third-party payers should be included into the network of money laundering crime prevention of Taiwan for management. In addition, third-party payment services should be performed on real-name basis. The general public should be required to register and use third-party payment services with their true identities. As for verification of identity, the so-called KYC process, the banks’ KYC can be relied upon to a certain degree, such as comparison of account name information of the credit card holder or the deposit account. In reference to the legal system of different countries and the current financial legal system of Taiwan, third-party payment operators should have the obligation to maintain payment transaction information in order to facilitate criminal investigation.
To protect consumers, the rights and obligations between the consumers and the third-party payers should be specified in a written contract. If it is displayed in electronic form, the written requirement should be consistent with Article 4 of the Electronic Signature Act of Taiwan. In addition, the consumers’ funds should only be used in accordance with the consumers’ payment instructions. To avoid other uses by the operators, there should be a requirement to deposit into special bank accounts to provide clear trace of transaction history. In reference to Article 24 of the Trust Act, separate account management is required under trust. So if a trust is formed, then the requirement for special deposit account can be waived. Furthermore, to avoid insolvency by the operators, operators can be required to take out insurance and acquire full performance guarantee.
Prevention is better than a cure. We should take precautions about possible issues that may arise from third-party payment. In addition, clear rules of the game will encourage industry development.
On the other hand, with the new type of money flow payment activities in the Internet era, traditional financial industries should see it as a new opportunity of business development, and not a threat. What third-party payment system processes is information flow; the actual flow of funds is still dependent on the banking system. Internet payment operators are still dependent upon the finance industry to provide financial planning and new types of financial products (such as trust and insurance) in order to promote their business. Building a sound Internet payment system indeed requires contributions from the information industry, the finance industry and the legal industry.
In the recent years, the tide of open movement has pushed vigorously from the open source software, open hardware and the recent open data. More and more countries have joined the global initiative of open government data in order to achieve the ultimate goal to promote the democratic governance. National government adopts open data policy to enhance the transparency, participation and collaboration of the citizen into the government operation. Meanwhile, fueled by the knowledge economy and the statistical analysis of the big data technology, open government data could work as the catalyst to individuals, industries and government agencies to transform data into potential knowledge-based services. Up to the end of 2013, there are around 77 countries have adopted the Open Government Data policy. Taiwanese government also declared to take part in the open data revolution. The government had officially launched the open data policy in 2012. In Resolution No. 3322, the Executive Yuan prescribes that open government data could enhance the transparency of the government; improve the quality of life of people; and meet the needs of the industry. Governmental agencies under the authority of the Executive Yuan shall to recognize the importance of the empowerment brought from open government data to the quality of the decision-making process and asked the agencies to implemented the policy from the perspectives of the user’s needs and applications, and also the consider to include machine readable format for the data. The Executive Yuan directed the Research, Development and Evaluation Commission (RDEC)（行政院研究發展考核委員會） to develop related principles and measures to support government agencies of the Executive Yuan to plan, execute and open up their data. At the same time, it also directed the Industrial Development Bureau（IDB）, Ministry of Economic Affairs (MOEA) （經濟部工業局）to develop responsive strategies to cope with the industrial development. Pursuant to the Resolution No. 3322 of the Executive Yuan, RDEC worked through the open government data related laws and regulations, proclaimed the “Open Government Data Operating Principle for Agencies of the Executive Yuan”（行政院及所屬各級機關政府資料開放作業原則）and the “Essential Requirements for Administrate Open Government Data Datasets” （政府資料開放資料集管理要項）in the early 2013. All government agencies of the Executive Yuan have to adopted the following 3 open government data steps："open up government data for public use”, “provide data free of charge subject to certain exemptions”, "automated systematic release and exchange data”, and work in with 4 open government focus strategies: “release data actively and by the priority in the field of daily necessity”, “develop the norm of open government data”, “promote the use of Data.gov.tw”, and “demonstrate and advocate open government data services”. Ministry of Economic Affairs (MOEA) （經濟部工業局）also provided grants ($9,200 NTD) to the open government data value-added applications and development. The open government data platform (data.gov.tw) was launched in July, 2013, as the official Taiwan government site providing public access and reuse of government data sets from 62 government agencies of the Executive Yuan, including the Ministry of Interior (MOI)（內政部）, Ministry of Foreign Affairs (MOFA)（外交部）, Ministry of Economic Affairs (MOEA)（經濟部）, Council for Economic Planning and Development (CEPD)（行政院經濟建設發展委員會）, Hakka Affairs Council (HAC)（客家委員會）, Water Resources Agency, Ministry of Economic Affairs (WRA) （經濟部水利署）, and 4 local governments. At the end of 2013, each government agency is required to release at least 55 data sets. In addition, the rising tide of private-sector (individual or enterprise) also aims to mine the gold in open government data. Act upon the National Information and Communication Initiative (NICI)（行政院國家資訊通信發展推動小組）in the consultation of the open government data policy, Taipei Computer Association (TCA)（台北市電腦同業工會）organized the “Open Data Alliance” (ODA)（Open Data聯盟）as a bridge between the information provide-side (public sectors) and the demand-side (private sectors), to communicate and coordinate the expectations and needs from communities (bottom-up) towards open government data. On Dec. 11, 2013, Taiwan took one more step in the global open data initiative. Open Data Alliance (ODA) and the Open Data Institute (ODI) in UK signed the memorandum of understanding (MOU) and announced the alliance established to promote and explore the potential opportunities of open data holds for the public, private and academic sectors. The engagement of ODA and ODI could bring another catalyst for the open movement in Taiwan to take one big step in the international community. According to a survey from ODA, the biggest challenge so far is the available data sets do not really meet the needs of the industry. And most of the feedback reflects the concerns in licensing, charge, frequency of updates, data formats and data quality. These voices echo the open government data issues encountered in many countries. There are still some obstacles with the applicable laws and regulations (for example, Charges and Fees Act, Personal Data Protection Act, Accoutability & Liability etc.) wait to be solved before both public and private sectors to go onto the next level of open data development.
The effective and innovative way to use the spectrum: focus on the development of the "interleaved/white space"1. Prologue Flexible and collective usage of spectrum is the mainstream in the modern times. Julius Genachowski, chairman of the Federal Communications Commission, delivered the keynote address to the CTIA-Wireless Association convention on Oct. 7, 20091. He said the U.S. government has been tripling the amount of spectrum available for commercial uses. The problem is that many industry experts predict wireless traffic will increase 30 times because of online video and other bandwidth-heavy applications. Accordingly, he warned that the shortage of spectrum would be a crisis for the on-going evolution of mobile broadband communication. Therefore, it’s critical for using precious spectrum effectively. Now, with the breakthrough of ICT, there is an alternative solution to this crisis: "application of interleaved/white space". 2. The cure for shortage of the spectrum To solve the shortage and ineffective use of scarce spectrum, developed countries have innovated technology to overcome the dilemma. Accordingly, the cognitive radio (CR) network with OFDMA (Orthogonal Frequency Division Multiple Access)2 systems, namely "spectrum sensing", to use the interleaved/white space is the therapy nowadays, especially after digital switchover (DSO). CEPT (European Conference of Postal and Telecommunications Administrations) identified "white space" as a part of the spectrum, which is available for a radio-communication application (service, system) at a given time in a given geographical area on a non-interfering / non-protected basis with regard to primary services and other services with a higher priority on a national basis. Specified clearly, the wording of "White Spots" or "White Spaces" or "Interleaved Spectrum" applied by CEPT has been used to introduce a concept of frequency spectrum which is potentially available at a given time for further utilization within frequency spectrum originally planned for broadcasting in GE063. The current CEPT view is that any new white space applications should be used on a non protected non interfering basis. Further studies are required into the framework needed to enable the use of CR devices within white space spectrum. Meanwhile, Millions more — both rural and urban — couldn’t afford computers and internet access in the United States. Yet big telephone and cable companies won’t bring broadband internet to rural America. Therefore, U.S. administration takes it seriously and considers to bridge the "digital gap" via CR networks for using white space to high-speed wireless internet access in rural area. Moreover, innovative way to use the spectrum after DSO could also satisfy the demand of band immediately with National Broadband Plan which proposed by President Barack Obama. 3. The definition and function of "white/interleaved space" In a word, the spectrum licensed to commercial use or public safety is not always occupied totally all the time. Accordingly, some bands are vacant just like "white" or "interleaved". If communicators use these interleaved and fragmented bands temporally, the spectrum-usage will be more effective and the cost of the spectrum now we used will be much lower. Not only U.S but also UK regulator Ofcom has published a discussion document to explore the possibility of using interleaved spectrum to wirelessly link up different devices and offer enhanced broadband access in rural areas. The idea is based on the development of technology that could search for unoccupied radio waves between TV channels to transmit and receive wireless spectrum. Take DSO in U.S. for example, when TV goes digital in June, 2009, TV broadcasters will use only a small portion of the public airwaves they are allocated.4 This is because digital transmissions can be packed into adjacent channels, while analog ones cannot. This means that the band can be "compressed" into fewer channels, while still allowing for more transmissions, which could result in a kind of "white space" (or so-called digital dividend) mentioned above. In most rural areas, 60 to 70 percent of these digital airwaves will be vacant. It goes without saying that those bands will be idle, which will also increase the cost the spectrum-usage. However, the TV band can carry a broadband signal that penetrates buildings, travels great distances, and penetrates heavy foliage. If people could search the "spectrum hole", off course, with CR or DSA (Dynamic Spectrum Sensing), and then link up those unoccupied band for wireless communication, the compelling needs of spectrum will be eased. Most important of all, this innovative way fits the trend of collective and flexible spectrum usage in 3G/4G era. 4. The key to open "white space" Undoubtedly, the WSD (White Space Devices) is the key to open the new gate. FCC issues some R&O to test WSD for welcoming white space. On October 5, 2007, OET (the Office of Engineering and Technology) of FCC issued a public notice inviting submittal of additional prototype devices for further tests (Phase II). On February 24, 2010, OET selected Wilmington, North Carolina, for the test market for the DTV transition, and unveiled a new municipal Wi-Fi network, after a month of testing. OET permitted that TV Band has an 18-month experimental license.5 For the goal of "smart city", the network has used the white space made available by the end of analog TV transmission. Spectrum Bridge (a famous company devoted to working out WSD and solution to white space)6 has worked to make sure TV stations in the market do not receive interference (no interference issues have been reported), and the company hopes to do the same if similar service becomes nationwide. The "smart city" network will not compete with cell phone companies but will instead be used for "national purposes", including government and energy monitoring (i.e. Smart Grid). TV Band Network, made up of private investors, has put up cameras in parks, and along highways to show traffic. Other uses include water level and quality, turning off lights in ball parks, and public Wi-Fi in certain areas.7 This success has promptly encouraged those have eyed unlicensed band/devices for wireless broadband internet access, especially the White Spaces Coalition8. The White Spaces Coalition consists of eight large technology companies that originally planned to deliver high speed broadband internet access beginning in June 2009 to United States consumers via existing white space in unused television frequencies between 54-698 MHz (TV Channels 2-51). The coalition expects speeds of 80 Mbps and above, and 400 to 800 Mbps for white space short-range networking9. Therefore, the Coalition hasn’t only pushed FCC to free up the band, namely unlicensed-band approach, but also eagerly innovated the WSD and advanced IT technology (i.e. Geo-Location, CR, DSA, OFDMA and IEEE 802.2210 …etc. ) to promote the awareness of white space. 5. How to use the key to unlock the door ? First of all, Geo-Location technology is the threshold to use the white space. Geo-Location is the identification of the real-world geographic location of Internet-connected computers, mobile devices, website visitors or others. In avoidance of band-interference and public safety communication, users mustn’t interfere with the prior ones, or s/he couldn’t access the band via WSD. Thus, Geo-Location can assist WSD users, just like a beacon, to avoid the occupied band and keep them away from nearby transmissions. Second, a spectrum database that contains Geo-Location information about devices using the free channels in the radio spectrum and some strong database managers are needed. Frankly speaking, the original idea was that WSD would detect existing users and switch frequencies to avoid them, but that's technically dubious and hasn't been demonstrated to FCC's satisfaction. So the proposed solution requires devices to locate themselves then connect to a database which will allocate a frequency along with a timeout, after which the device will have to repeat its request. For example, the followings are the necessary information in the TV database. • Transmitter coordinates (latitude and longitude), • Effective radiated power (ERP), • Height above average terrain of the transmitter (HAAT), • Horizontal transmit antenna pattern (if the antenna is directional), • channel number, • Station call sign. In a word, in order to protect existing broadcasters, FCC mandated the creation of a Geo-Location database that details what spectrum is in use and where. Furthermore, the idea is that unlicensed broadband devices will tap this database before sending or receiving data, using the info in tandem with spectrum sensing technologies to avoid interference. Accordingly, White Spaces Database (WSDB) was introduced, a DB which would permit public access to register and discover devices and the frequencies used based on their location11. This database would be used in conjunction with local device discovery to avoid contention between devices. FCC has worried about that no one has ever run a radio system like this, so no one can really claim experience in the area (though most of the proposals try). The FCC commissioner Robert McDowell has raised an eyebrow at Google's request to serve as an administrator of a national database detailing the use of white-space spectrum. Google proposes the operation of a WSDB for at least five years, promising to "transfer to a successor entity the Database, the IP addresses and URLs used to access the Database, and the list of registered Fixed WSD" in case they cannot live up to it. Google does not plan to "implement per-query fees"12 , but they are considering a per-device fee. No decision has been made yet, but the FCC allows a WSDB administrator to charge such fees.13 Finally but innovating initially, it’s the Cognitive Radio system (CR). There are various definitions of CR. Herewith the paragraph 10 of the FCC 03-322 NPRM, the definition of Cognitive Radio could be specified as a radio that can change its transmitter parameters based on interaction with the environment in which it operates. The following figure shows how the Cognitive Radio System does work. Figure 1.Cognitive Radio System Let’s explain it more clearly and vividly. Imagine a radio which autonomously detects and exploits empty spectrum to increase your file transfer rate. Suppose this same radio could remember the locations where your calls tend to drop and arrange for your call to be serviced by a different carrier for those locations. These are some of the ideas motivating the development of cognitive radio. In effect, a cognitive radio is a software radio whose control processes leverage situational knowledge and intelligent processing to work towards achieving some goal related to the needs of the user, application, and network. Although cognitive radio was initially thought of as a software-defined radio extension (Full Cognitive Radio), most of the research work is currently focusing on Spectrum Sensing Cognitive Radio. In other words, the focus on CR has been switched into "DSA" (Dynamic Spectrum Access) nowadays.14 Therefore, some fellows replace Cognitive Radio with "Cognitive Systems" for accurate description.15 The following is the figure to show the function of DSA to detect "spectrum hole" that could be used as TV white space.16 Figure 2.The sensing of the spectrum hole "Digital dividend", one kind of interleaved/white space, has been viewed as precious band in Unite Kingdom, too. In U.K., its regulatory body, Ofcom, has also published a discussion document to explore the possibility of using these "dividend" to wirelessly link up different devices and offer enhanced broadband access in rural areas. Ofcom has predicted that could enable the use of the spectrum in this way would take at least three years to develop. Possible applications include mobile broadband, the transmission of home media such as photos from cameras to a computer wirelessly and the ability to control appliances in the home. Moreover, Ofcom firmly contended that if there was evidence that interference could be avoided, it would allow the use of interleaved spectrum without the need for individual licenses, the same as the FCC’s policy. However, local TV coalition United for Local Television (ULTV)17 has strongly criticized the Ofcom’s current proposal to appoint a band manager to "control" interleaved spectrum (and make it available to applications such as wireless microphones for special events) and to ensure that the spectrum is made available to local TV groups on fair, reasonable and non-discriminatory terms. According to current proposals, Ofcom’s "band manager" would be required to allocate spectrum to special event organizers on fair and non-discriminatory terms but not to local TV groups. ULTV has protested this unfair condition. In contrast, FCC has clearly issued the "2nd report" to mandate the bidder of upper 700 MHz D block should apply to fair and non-discriminatory terms. 6. Technological challenges for accessing white space In November 2008 the FCC issued an R&O on the unlicensed use of TV white space.18 The FCC regulated some vital requirements to rule the usage of TVWS in this document. These requirements impose technical challenges for the design of devices operating in TV white space spectrum, which brings new tough task for the innovation and production of WSD.19 These new rules provide an opportunity but they also introduce a number of technical challenges. The challenges require development of cognitive radio technologies like spectrum sensing as well as new wireless PHY and MAC layer designs. For example, the development of spectrum sensing techniques involves RF (Radio Frequency) design, robust signal processing, pattern recognition and networking protocols… etc. The choice of RF architecture is no longer merely a hardware issue, but will directly affect the upper layer performance. Furthermore, these challenges include spectrum sensing of both TV signals and wireless microphone ones, frequency agile operation, geo-location, stringent spectral mask requirements, and of course the ability to provide reliable service in unlicensed and dynamically changing spectrum.20 In addition, the FCC has strict out-of-band emission (OOBE) requirements to prevent interference with licensed transmissions in other channels. A detailed description of these out-of-band emission requirements and their impact on the transmission spectral mask for WSD is provided in Section VII of the R&O. Unfortunately, there are still other hurdles to be overcome. While the frequencies used by television stations do have a long reach and easily penetrate walls, it is important to remember that these signals are one-way communications, often broadcast from giant antennas at megawatts of power. For gadgets and computers, a much lower transmission power would be used, greatly decreasing the range of the White Space devices. So are we talking the Wi-Fi-like ranges here or 3G-like ranges? The National Association of Broadcasters has also questioned the ability of WSD to operate without interfering with television broadcasts. In addition, wireless microphones could be affected, although Google has proposed a "beacon" that could be utilized alongside existing wireless microphone equipment that would alert WSD not to operate on the same channel. Last but not least, how to ensure QoS of WSD users is implicit trouble. The Cognitive Radio system should provide that fast, robust, coordinated sensing and quite periods and to protect incumbents as well as provide QoS. It will be a dilemma faced by the regulatory bodies and ICT industry. Another real-world problem is that there are no WSD for consumers and even if someone comes out with a new product, it will likely be very expensive since it isn’t widely produced,21 although Spectrum Bridge has proven one example mentioned above. Nevertheless, some people still criticized what Spectrum Bridge has done probably could have used 5 GHz for the point-to-point backhaul connections. "The Smart City" is using Wi-Fi for the last mile rather than white spaces because there are no white space devices on the consumer end. Rick Rotondo, chief marketing officer for Spectrum Bridge argued Spectrum Bridge tried using Wi-Fi at 2.4GHz, 5GHz would never have made it; 2.4 didn’t make it. However, Spectrum Bridge did use Wi-Fi for the last hundred feet, not the last mile, but for the last hundred feet because there are Wi-Fi receivers built into laptops and smartphones and that’s who we wanted to be able to connect to this network. It sounds like a tautology. 7. What’s beyond the white space ? What kind of ICT could people apply to after getting the white/interleaved space? "Super Wi-Fi" is the first application connected with white space. As Larry Page, co-founder of Google, has described that white spaces are like "Wi-Fi on steroids" linked up wireless internet with much faster speeds, stronger signals and more affordable costs. Besides, there are other advanced ICT could function via white space, such as LTE, IPTV, MediaFLO, DVB-H, ISDB-T, MVNO, ITS (DSRC) and so on. 8. Vision: Legal challenges for accessing white space in Taiwan Although not mentioned above, FCC indeed allows the secondary-market of spectrum boosting in U.S. That’s an important reason, or motivation, to develop white space applications and regulations. In other words, the spectrum, not the license, could be auctioned, leased, retailed, weaved and so on. However, the regulatory mode of communication in Taiwan is "Vertical Regulatory Framework", which would be an obstacle to evolve the spectrum-usage in contrast to U.S and EU. Under the interpretation of Legal Positivism, Taiwan Budget Act Article 94 states, "Unless otherwise provided for by law, grant of quota, frequency, or other limited or fixed amount special licenses shall be conducted by open auction or public invitation to tender and the proceeds of which shall be turned in to the national treasury." Hereby, the administration could really fulfill the legal assignment via public invitation to tender or auction for the "license", not the band. Nevertheless, the administration does not apply auction process to issue the licenses, but approaches the frequency licenses with "Radio and Television Act" and "Administrative Regulations on Radio Waves" which is promulgated under the Telecommunications Act in accordance with the first paragraph of 48, Section 1 of said Act instead. Step closely, Radio and Television Act Article 4 firmly states, "The frequencies used by radio/television businesses are owned by the state and their allocation shall be planned by the MOTC in conjunction with the regulatory agency. The frequencies mentioned in the preceding paragraph may not be leased, loaned, or transferred. (emphasis added)". This article has resulted in inflexible use of spectrum, and dragged the collective use of spectrum, too. Undoubtedly, only we have to do is to amend the article for accessing white space in accordance with Legal Positivism. Second, according to Administrative Regulations on Radio Waves, the National Communications Commission shall be responsible for the overall coordination and regulation of radio waves including radio frequencies, power, emission method and radio station identification call sign etc., which shall not be used or altered without approval. Thus, under the justice of legal system, NCC should revise the spectrum policy/regulations in harmony with Administrative Regulations on Radio Waves. For example, the Article 6 and 10 separately regulates, "The radio equipment shall adopt the latest technical advances to limit the number of frequencies and the frequency bandwidth used to the minimum essential for the necessary services. The frequency assigned to a station of a given service shall be separated from the limits of the band allocated to this service in such a way that, taking account of the frequency band assigned to a station, no harmful interference is caused to services to which frequency bands immediately adjoining are allocated." Therefore, WSD indeed, even necessarily, should be applied to band management and revolution of ICT industry. Moreover, Central Regulation Standard Act Article 5 (embodied the principle of constitutional requirement of a specific enactment) also requires, "The following objects shall be stipulated by a statute: 1. It is required to stipulate by a statute as the Constitution or a statue expressly stipulated. 2. Stipulation concerns the rights or obligations of the people. 3. Stipulation concerns the organization of a government agency at national level. 4. Other objects with substantial importance shall be stipulated by a statute." The Legislative Yuan must consider to promote the status of Administrative Regulations on Radio Waves to Statue, which conforms to Constitutional requirement. To sum up, Taiwan administration should take white space seriously, or ICT in Taiwan will be doomed as if getting lost in "space". 9. ad hoc Conclusion :Do not lock the door of white space "Open access" is the most important canon in the usage of white space. In this meaning, there are two dimensions for open access. One is unlicensed band-usage, the other is unlicensed WSD which is also unlicensed and interlocks into different operators’ networks. The later is a big task in America. FCC’s decision was contested by the TV broadcasters who fear using the freed channels would interfered with TV signals and live singers who are using the same wave spaces.22 Larry Page also argued that unlicensed white spaces offer a way for the U.S. to catch up with the rest of the world in broadband access. Today, 10% of Americans still don't have access to DSL or cable broadband, according to consultancy Parks Associates. Fortunately, the first steps towards white space communications have already been taken and FCC has approved unlicensed use of the spectrum, but FCC requires a database of all known licensed users to be deployed in order to prevent from interfering with the existing broadcasts and devices already using the space, such as licensed TV broadcasts and some wireless microphones The second dimension is unlicensed WSD to compatible different network architecture. At first, the unlicensed devices must fit the criterion which could guarantee that they will not interfere with assigned broadcasts can use the empty white spaces in frequency spectrum. In order not to harm nearby transmission, the best way is to set a standard for WSD in one network built by certain operator. For example, if WSD users want to connect to Verizon Wireless’ network, s/he has to buy/use Verizon Wireless’ WSD. However, out of Verizon Wireless’ network, WSD users have to purchase/use another WSD. It will be inconvenient and raise the cost, but quench people’s desire to use WSD. As a result, FCC issued the R&O to prevent devices-locked, so-called "discriminatory QoS", from deploying the white space proposal. Accordingly, the mandatory rule indeed slows down the innovation of WSD. Obviously, unlicensed use of the vacant TV channels is an economic and social revival waiting to happen in rural areas. In addition, white/interleaved space will manage to fit the core principle of modern spectrum-development, "collective and effective use". There are so many merits to share the "dividend", but at this time, we are still far away the real "white space". The situation in Taiwan is much worse unfortunately. 1.See FCC official document,http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-293891A1.pdf (last visited 03/05/2010) 2.OFDMA is a multi-user version of the popular Orthogonal frequency-division multiplexing (OFDM) digital modulation scheme. Multiple access is achieved in OFDMA by assigning subsets of subcarriers to individual users. This allows simultaneous low data rate transmission from several users. 3.See Final Acts of the Regional Radio-communication Conference for planning of the digital terrestrial broadcasting service in parts of Regions 1 and 3, in the frequency bands 174-230 MHz and 470-862 MHz (RRC-06). 4.In the United States, the abandoned television frequencies are primarily in the upper UHF "700-megahertz" band, covering TV channels 52 to 69 (698 to 806 MHz). 5.See http://spectrumbridge.com/web/images/pdfs/smart_city-spectrumbridge.pdf visited on 2010/2/27. 6.http://spectrumbridge.com/web/ 7.See http://showmywhitespace.com/portals/1/Spectrum%20Bridge%20Launches%20White%20Spaces%20Network%20In%20Wilmington-New%20Hanover%20County.pdf visited on 2010/2/27. 8.The group includes Microsoft, Google, Dell, HP, Intel, Philips, Earthlink, and Samsung Electro-Mechanics. 10.The standardization is another crucial issue but will not be discussed in detail hereunder. 11.In February 2009, Google joined Comsearch, Dell, HP, Microsoft, Motorola, and Neustar to form the White Spaces Database Working Group (WSDG), an effort to build such a database.. 12.Actually, the database host will know where users are and the kit they're using, both of which are commercially valuable pieces of information. Google thinks that data will pay for the database, and Google is very good at extracting value from information; but even if it can't turn white space into gold, it will have five years to drive the competition out of business. 13.See generally Google’s proposal to FCC, http://www.scribd.com/doc/24784912/01-04-10-Google-White-Spaces-Database-Proposal visited on 2010/2/28. 14.Specifying clearly, the main mechanism of CR is including, but not limited to DSA. 15.Evolution of Cognitive Radio toward Cognitive Networks is under process, in which Cognitive Wireless Mesh Network (i.e. Cog-Mesh) is considered as one of the enabling candidates aiming at realizing this paradigm change. 16.Test conducted in the rural sector west of Ottawa, Canada. See C. R. Stevenson, G. Chouinard, W. Caldwell,Tutorial on the P802.22.2 PAR for :"Recommended Practice for the Installation and Deployment of IEEE 802.22 Systems," IEEE802, San Diego, CA, 7/17/06 http://grouper.ieee.org/groups/802/802_tutorials/july06/Rec-Practice_802.22_Tutorial.ppt. 17.United for Local Television ("ULTV") is a coalition of groups and campaigners who together lobby the government to recognize local TV as a public service. ULTV argues that all citizens should have access to local TV, no matter where they live, without having to subscribe to pay-TV or broadband. ULTV proposes that the government reserve capacity for local TV services on the most popular television platform in the UK today – digital terrestrial television (commonly known as "Freeview"). ULTV anticipates that local TV channels will provide local news and sport, together with a range of other local and networked programming. ULTV envisages local TV services would also provide local advertising, for the first time offering a cost-effective option for many local businesses seeking to advertise on terrestrial TV in their target market. 18.See Second Report and Order and Memorandum Opinion and Order In the Matter of Unlicensed Operation in the TV Broadcast Bands, Additional Spectrum for Unlicensed Devices Below 900 MHz and in the 3 GHz Band, Federal Communication Commission, Document 08-260, Nov. 14, 2008. 19.In detail, the FCC distinguished fixed WSD from portable one. There are different restrictions and requirements between them. 20.See http://ita.ucsd.edu/workshop/09/files/paper/paper_1500.pdf visited on 2010/2/20. 21.See http://www.digitalmediabuzz.com/2010/03/broadband-debate-white-space/ visited on 2010/3/17. 22.See http://lasarletter.net/docs/nabpet4review.pdf visited on 2010/2/25.
The Organization Framework, the Notification System and the Legal Norms of Critical Infrastructure Protection in the U.S.1. Organization Framework In the organization framework of critical infrastructure protection, there are mainly the public departments and the PPP organizations. The functions and task description of relevant organizations are as follows. (1) Department of Homeland Security After the September 11 attacks in America, the Homeland Security Act was passed in November 2002, and based on this act, 23 federal organizations, plans and offices were integrated to establish the Department of Homeland Security (DHS) to take responsibility for homeland security in America. The tasks include: (1) to analyze intelligence data collected from various departments such as the Central Intelligence Agency (CIA) and the Federal Bureau of Investigation (FBI) so that any threats to security can be discovered in time, (2) to protect and defend critical infrastructure, (3) to coordinate and lead America to prevent and respond to the attacks from nuclear weapons, biochemical weapons and other and (4) to coordinate the tasks of the federal government, including emergency and rescue. For the task regarding critical infrastructure and critical information infrastructure protection, the main units in charge are the Office of Infrastructure Protection (OIP) and the Office of Cybersecurity and Communications (CS&C) subordinate to National Protection and Programs Directorate (NPPD), Department of Homeland Security (DHS), to reduce the risk in both physical and cyber security to maintain national security1 (2) Congress Relevant units and committees are established both in the Senate and the House of Representatives to be responsible for protection and making policies pertinent to important critical infrastructure and critical information infrastructure. (3) Computer Crime and Intellectual Property Section In 1991, the Department of Justice (DOS) established the Computer Crime and Intellectual Property Section (CCIPS), a section of the Criminal Division, to be responsible for all crime combating computer and intellectual property. Computer crime is referred to cases which include electronic penetrations, data thefts, and cyber attacks to the important critical infrastructure. CCIPS also prevents, investigates, and prosecutes computer crimes by working with other government agencies, the private sector, academic institutions, and foreign counterparts. (4) Other Relevant PPP Organizations 2The Information Sharing and Analysis Center (ISAC) is responsible for the information security message sharing among the industries of each critical infrastructure to ensure the liaison and cooperation among industries. Finally, for the issue on critical information infrastructure, especially cyber crimes, both the National Cyber Security Alliance (NCSA) and the Cross Sector Cyber Security Working Group (CSCSWG) are designated to serve as crucial roles in governmental and non-governmental internet security prevention to be responsible for techniques and education. 2. Notification System (1)Computer Emergency Response Team Coordination Center The Computer Emergency Response Team Coordination Center (CERT/CC) run by Carnegie Mellon University is the oldest and most important early-warning organization for information security in the USA. With its experts studying internet vulnerabilities and risk assessment released regularly, it reminds people of the possible dangers which exist in the information age and the need to improve internet security. (2)US Computer Emergency Readiness Team The US Computer Emergency Readiness Team (US-CERT) was established in 2003. It is responsible for protecting the infrastructure of the internet in America and for coordinating and providing response support and defense against national cyber attacks. It interacts with federal agencies, industry, the research community, state government, and others to disseminate reasoned and actionable cyber security information to the public. (3)Federal Bureau of Investigation The Federal Bureau of Investigation (FBI), the first early warning center of critical infrastructure at the national level, is responsible for providing the information pertinent to legal execution presently and also taking responsibility for the investigation of cyber crime. (4)Information Sharing and Analysis Centers Currently, industry in America, including finance, telecommunications, energy, traffic, water resources, together established individual Information Sharing and Analysis Centers (ISACs) based on the policy made in PDD-63. The ISAC of the financial system established in October 1999 being the first established center. These ISACs further work together to form an ISAC Council to integrate the information from each of them and improve their interaction and information sharing. 3. Legal Norms In reference to the laws and regulations of critical infrastructure protection, America has aimed at critical infrastructure protection and computer crime to formulate the following regulations. (1) Federal Advisory Committee Act of 1972 According to the Federal Advisory Committee Act (FACA), the advisory committee can be established in every federal agency to provide the public, along with received open advice, with relevant objectives, and to prevent the public from being inappropriately influenced by the policies made by the government. However, to keep the private institutions which run the critical infrastructures from worrying the inappropriate leak of the sensitive information provided and consulted by them, Critical Infrastructure Partnership Advisory Council was established so that the Secretary of Homeland Security has the right to disregard the regulations of FACA and establish an independent advisory committee. (2) Computer Fraud and Abuse Act of 19863 The Computer Fraud and Abuse Act (CFAA) was enacted and implemented in 1986. It mainly regulates computer fraud and abuse. The Act states that it is against the law for anyone to access a protected computer without authorization. However, it also recognizes the fact that accessing a computer system of electronic and magnetic records does not mean a violation of the law. According to the CFAA, what is needed is one of the following requirements to be the wrongful conduct regulated in the Act: (1) whoever intentionally accesses a computer to obtain specific information inside the government or whoever has influenced the transmission function of the computer system; (2) whoever intentionally accesses a computer to obtain a protected database (including the information contained in a financial record of a financial institution or of a card issuer, or the information contained in a file of a consumer reporting agency on a consumer, or the information from any department of agency of the United States, or the conduct involving an interstate transaction); (3) whoever intentionally accesses any nonpublic computer of a department or agency of the United States, and causes damage. In addition, the Act also prohibits conduct such as transmitting malicious software, and defrauding traffic in any password or similar information. For any person who suffers damage or loss by reason of a violation of the law, he/she may maintain a civil action to obtain compensatory damages and injunctive relief or other equitable relief. However, the Computer Abuse Amendment Act (1994) expands the above Act, planning to include the conduct of transmitting viruses and malicious program into the norms whose regulatory measures were adopted by the USA Patriot Act enacted in October 20014 (3) Homeland Security Act of 20025 The Homeland Security Act provides the legal basis for the establishment of the Department of Homeland Security and integrates relevant federal agencies into it. The Act also puts information analysis and measures of critical infrastructure protection into the norm. And, the norm in which private institutions are encouraged to voluntarily share with DHS the information security message of important critical infrastructure is regulated in the Critical Infrastructure Information Act: Procedures for Handling Critical Infrastructure Information. According to the Act, the DHS should have the obligation to keep the information provided by private institutions confidential, and this information is exempted from disclosure by the Freedom of Information Act. (4) Freedom of Information Act Many critical infrastructures in America are regulated by governmental laws, yet they are run by private institutions. Therefore, they should obey the law and provide the government with the operation report and the sensitive information related with critical infrastructure. However, knowing that people can file a request at will to review relevant data from the government agencies based on the Freedom of Information Act (FOIA), then the security of national critical infrastructure may be exposed to the danger of being attacked. Therefore, the critical infrastructure, especially the information regarding the safety system, early warning, and interdependent units, are all exempted by the Freedom of Information Act. (5) Terrorism Risk Insurance Act of 20026 After the 911 Incident, Congress in America passed the Terrorism Risk Insurance Act to establish the mechanism to underwrite terrorism risk insurance, in which insurance companies are required to provide terrorism attack risk insurance and the federal government will also cover part of loss for severe attacks. 1.http://www.dhs.gov/xabout/structure/editorial_0794. shtm (last accessed at 21. 07. 2009). 2.http://www.thei3p.org/ (last accessed at 21. 07. 2009). 3.http://www.panix.com/~eck/computer-fraud-act. html (last accessed at 21. 07. 2009). 4.Mark G. Milone, Hacktivism：Securing the National Infrastructure, 58 Bus. Law, 389-390, 2002. 5.http://www.dhs.gov/xlibrary/assets/hr_5005_enr.pdf (last accessed at 21. 07. 2009). 6.http://www.ustreas.gov/offices/domestic-finance/financial-institution/terrorism-insurance/pdf/hr3210.pdf (last accessed at 21. 07. 2009).
Challenges and Opportunities from Digital ConvergencePreface With the blooming of IT technologies, the term of “digital convergence” represents the whole atmosphere at this moment. “Digital convergence”—means that after telecommunication and broadcasting systems are following the IP based framework, contents and services, those were easy to define, turn to be confused. Relying on the uniform platform, operators are able to provide services to different systems. Services containing VoIP, IPTV or the latest terms of “Multi-screen Ecosystem” and “Connected TV” are all involved in the “digital convergence” notion. Today, no matter the service of “check in” or “watching TV programs on Smartphone,” any figures about multiple services on different devices are presenting the “digital convergence” effect. On the consumer side, “digital convergence” brings a fascinating imagination of life. Time and space are no more limitations to people for getting information. Consumers select services only depending on the quality of each service. However, the fascinating imagination of customers becomes a pressure to the relative industries. In the past, because of distinctive transmission technique, services of television, internet and information were regarded as in different industries. Effective competitors only appeared in the same industry. However, today “digital convergence” effect results in crossing-industries competition and customer immigration. To accommodating and pursue the new trend, only unique ideas and novel services can help incumbents to survive. “Digital convergence” brings not only a challenge but also an opportunity. Today, user-friendly application services are cumulatively created and accommodated in the mature broadband network. For examples, high quality entertainment services occur after communication and multimedia broadcasting techniques are improved, “Near Field Communication” technology rising causes new types of cash flow services. Otherwise, Cloud Computing technique enables people easily to access tele-healthcare services and Telematics services. Certainly, digital convenience accelerating industries transformation and value-added services is now taking place around us. According to ITU reports, every 10% increase of broadband infrastructure extension might cause 0.255 to 1.38% GDP growth rate. High penetration of broadband infrastructure might lead a significant influence on economy growth. Take South Korean experiences as an example, by owing a complete broadband infrastructure, on-line game industry and national digital content industry in this country are individually possessing $8.3 billion and $ 3.4 billion output value. By sensing the potential possibilities, governments in different countries propose their own national industry policies, including American government proposed “National Broadband Plan”, the “Digital Britain White Paper” formulated by United Kingdom, “Hikari no Michi”(光の道, which means fiber superhighway) in Japan and the “Ultra-Broadband Convergence Network Plan (UBcN plan)” in South Korea, moreover, the “Tri-networks Integration Plan” in China. And Taiwan does not absent in this moment. In order to stand firmly in this trend, we also formulate “Digital Convergence Development Program 2010-2015 (DCDP 2010-2012)” in 2010. Below, we are going to make a briefly and neat description of “DCDP 2010-2012”. 1.INTRODUCTION For assisting national relative industries to smoothly transform and enhancing Taiwan’s international competitiveness, Executive Yuan admitted the “Digital Convergence Development Program 2010-2015 (DCDP 2012-2015)” in 2010. In this program, there were six main goals containing: (1) complement the broadband superhighway infrastructure; (2) initiate the convergence of telecommunication services; (3) accelerate the process of Television digitization; (4) develop emerging internet video services; (5) improve communication industries; and (6) establish an integrity regulation framework, as well as twenty-one improving tactics and seventy-eight measures for crossing- administrations cooperation and negotiation to be declared. Otherwise, Executive Yuan also established DCTF to be responsible for coordinating every effort from every administration and facilitate digital convergence tasks. Latter, we will make further descriptions for the six main goals, we just mentioned above: A.Complement the broadband superhighway infrastructure According to the Global Information Technology Report 2010-2011, proposed by World Economic Forum (WEF), Taiwan on the Network Readiness Index (NRI) item was been ranked at 6th place and at 5th place on another item of highest FTTH/FTTB penetration. However, though our coverage of broadband network was high, the total bandwidth was still insufficient to contain all the new creating services. To resolving the shortage of bandwidth, including Ministry of the Interior (MOI), Ministry of Economic Affairs (MOEA), Ministry of Transportation and Communications (MOTC) and National Communications Commission (NCC) were convened to extend the national fiber coverage and facilitate the installation upgrade. Regarding wireless broadband construction, administrations including MOEA, MOTC and NCC were under obligation to energetically detect the latest developments of wireless telecommunication technologies as well as proposed guidelines from other countries, concerning about the allocation of spectrum, telephone numbers and IP address resources. Through crossing-administrations cooperation and coordination, in December 2011, the total of national subscribers applying fiber network service had achieved 3.31 million houses, besides, there were 24.58% houses in Taiwan possessed 100Mbps broadband network services. Totally, there were 7.88 million wireless broadband accounts being applied. B.Initiate the convergence of telecommunication services Smartphone booming brought an emerging mobile entertainment life style, furthermore, it also accelerated the rising of mobile value-added application services. To this trend, administrations containing MOEA, Financial Supervisory Commission (FSC) and NCC all devoted to establishing a constructive environment, with providing assists and building up a complete regulation framework. For examples, up to the end of 2011, national telecommunication operators had signed a memorandum with EasyCard Corporation to develop a mobile cash flow platform, which allows cash flowing through the Internet, for giving people a more convenient experience. C.Accelerate the process of Television digitization Within various emerging application services, “Television digitization” might be the most important one in people’s life. “Television digitization” service brought not only a higher quality experience of watching programs, but also created extra demands of relative application services. Furthermore, increasing demands also bought an improvement to the industry and simultaneously accelerating the development of digital content industry. Nationwide terrestrial TV signal switching program, a fully signal switching from analog to digital, has accomplished in July 2012. In order to achieve 90% coverage rate of digital signal transmission, accommodations containing Council of Indigenous People (CIP) and NCC were not only devoted to establishing a Digitization Improvement Station, but also attempt to integrate all signals from original terrestrial TV stations into one satellite to transmit. To accomplish this signal switching program, government had cultivated for many years and try to increase people’s acceptance level of high definition (HD) TV service. Before receiving this success, NCC had spent a long time devoting itself to integrating containing every effort from many administrations and associations, such as the local governments, national industry associations and operators of household application, moreover, as well as Public Enterprises, including Taiwan Power Company, Chunghwa Post Corporation and Taiwan Water Corporation to popularizing this program. Nevertheless, about the digitization program of cable TV, up to 2010, though there were already 60% of houses in Taiwan possessing cable TV service, only 5.55% of cable TV houses switched into digital. As a result, we found that no incentive measures might be the crucial reason. To reverse the impasse, our strategy was to amend the current laws, through adjusting the regulation framework we could facilitate the market into effective competition. In addition, to accelerate the cable TV digitization process, government also regarded the Olympic relaying in England as a turning point to create the demands of HD TV service. After getting the franchise, people are able to watch Olympic Games through any platforms, including terrestrial TV, cable TV and even IPTV. As the demands arising, it would also encourage operators to produce more HD programs afterward. D.Develop emerging internet video services Digital convergence effect also caused the emerging internet video services booming. In order to encourage the crossing-platforms video services and achieve 50% user rate in 2015, there were three guidelines been proposed. The first one was emerging video service regulation reforming, the second one was facilitating integration between emerging accessing approaches and distribution channels, and the third one, developing a rational regulation on contents management. In synchromesh with terrestrial TV signal switching program, emerging internet video services were also assigned to provide HD Olympic Games programs. In that period, the subscribers of Chunghwa Telecom’s MOD (Multimedia on Demand) service were able to watch the Olympic Games relaying on 14 free HD channels and 1 free 3D channel, which is provided by ELETA TV. Moreover, they could also receive the programs on demand through internet or Smartphone. Afterward, from the collected data, we found that even though the rate of new subscribers only had a few rise, an obviously rose presented on the turning on rate. Depended on those data, we believe that people had already been more familiar with IPTV and HD programs. Besides, this relaying program totally attracted 95 individual advertising and the total revenue from advertising was NT$ 80 million dollars. E.Improve communication industries Producing prolific contents is the key element for attracting customers and stabilizing the development of digital convergence industry. To facilitate the contents producing, DCDP proposed three elements to be improved: fund, talent and marketing. And the tasks of these three elements were including investment facilitation, marketing skill reinforce, personal training as well as culture protection, consumer’s right protection, technique standardization and transnational cooperation. To assist in industries transformation, MOEA focused on promoting the APP design and upgrades. Recently, measures provided by MOEA, such as transformation counseling, R&D subsidies, drive-by VC investment, personal training and even the R&D loan had already taken effect. In addition, to create a virtuous investment circles in contents industry, government also considered to release more subsidies to encouraged those superior producers and movie makers. F.Establishing an integrity regulation framework Digital convergence effect accelerated the competition in the market, including communication or relative contents industries were enter a transformation era. In this period, it was essential to have a practical and integrity regulation framework. Recently, NCC hastened to undertake the amendments of three Acts, containing Radio and Television Act, Cable Radio and Television Act and Satellite Broadcasting Act. Actually, the expectation of this undertaking was to adopt the adjustment of digital convergence in 2014. In addition, Fair Trade Commission (FTC) and Intellectual Property Office (IPO) would also continue to observe the digital convergence influences in 4C (telecommunication, cable television, computer network and e-commerce) and contents (copyright) industries. 2.Second Edition of DCDP and Primly Policies Indicators Advance Since DCDP was launched, it has caused a tremendous response. Nevertheless, rapidly advanced ICT technologies inspire people’s expectations. Recently, it has already overtaken the anticipations of used DCDP. Therefore, to formulate a prescient version, Executive Yuan adopted the second edition of DCDP 2010-2015 in May 2012. In the second edition, an item of “producing prolific TV programs” is added to be the seventh main subjects, in addition, there are five extra items added in the improving tactics part; moreover, the number of measures increased to 107 items. Digital convergence indicators are also reformulated. First, 100Mbps wired broadcasting service should achieve 100% in 2013, and the second, accomplishing 100% digitization of cable TV in 2014. To achieve these indicators, relative administrations decide to accelerate the network infrastructure complementing process and cable TV digitization process. Simultaneously, they also consider extending their regulatory scale from emerging internet video services to the connected TV industries, and enhancing superior programs producing by policy making. In point of accelerating network infrastructure complementing process, a complete broadband network is a foundation of digital convergence industry. However, a “complete” network indicates not only the non-discriminatory access to the hardware, but also mention about having reasonable prices to access broadband services. By considering of Telecommunication operators and cable TV operators are both provides of broadband services, the digitization issue of cable TV industry is also concerned in the DCDP. As a primary enemy to Telecommunication operators in the convergence market, cable TV operators’ competitiveness does not come from the their large share on the cable TV market, but from their possession of wide spread cable network. Otherwise, various new creating contents and application are also encouraged in the DCDP. With “Smart TV,” “HDTV” and “Connected TV” booming, “TV” has transformed from a passive receiving media to an information transport. Although, those emerging broadcasting techniques might threaten the traditional television industry, they bring positive influences to the media industry. By considering a well-run development must building on a integrity and friendly regulation framework. DCTF, an office established by Exclusive Yuan, will also take its responsible to assist NCC on the digital convergence regulatory issues. 3.Conclusion Digital convergence effect to us is a turbulence but also a moment. Today, this effect, which originally comes from the techniques convergence, has detonated in different nations and various places; crossing-industries competition turns to be more and more common around the world. To accommodate our nation to this trend, the primary strategy proposed by government is to integrate administrations’ effort. Through policies making, including DCDP upgrading and validly relative regulation frameworks amending, every relative industry is able to restore enough energy and seize the moment, further, naturally turns to be a domain of market competition.
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