The evolution of the virtual private network (VPN) is truly an example of the innovation of digital societies to re-purpose a technology to serve multiple needs. The VPN originated as a means of providing greater security for online transactions or accessing confidential documents, mainly used in business environments. By masking or changing an IP address, VPN’s allowed a user to secure their private personal data from ISP records, protect online transactions from unsecured networks or harmful sites, and generally provide a layer of encryption using a secure protocol. Ideologically VPN’s can also represent digital democracy, freedom of privacy, and can be used to facilitate the circumvention of censorship.
Noble intentions aside, Canadians are using VPN’s to watch US Netflix.
And why not? There are a host of VPN options ranging from free (most likely with unreliable pirated VPN codes) to paid (an average fee around $5/month), thousands of YouTube videos on how to use VPN, and Google analytics showing the frequency of people searching for ‘how to get US Netflix’ in Canada.
If you don’t want to pay the $5, enter Wajam’s free VPN service, which in addition to integrating social networks for more relevant social search recommendations, now also compresses data to help users save on data usage, secures details with web logins, and yes - gives users the ability to access other countries exclusive websites, all in a handy and elegant iOS app.
So it’s easy; simply mask your computer’s location, and pay for your geo-blocked online content, right?
Geo-blocking is most frequently used by media/technology companies and streaming services in the Western world to divide the globe into segments to either set different prices or protect copyright and licensing restrictions. Additionally, companies that use geo-blocking also are governed by terms of service, which in effect are breached when subscribers circumvent the geo-block. Netflix for example does not condone VPNs and using one clearly violates the company's terms of service agreement. Would Netflix be ready to face the critisicm they would get if they were to void all of these subscriptions?
Generally speaking, it is legal to use a VPN to protect your online transactions, however the legality of using a VPN to facilitate alternative online activity is still a grey area. In August 2013 Judge Breyer became the first US district judge to rule that it is in fact a breach of the Computer Fraud Act to avoid an IP address block using a mask technology. Although the case related to accessing private data using a VPN and not accessing geo-blocked media content per se, the ruling made it illegal to ‘knowingly circumventing one or more technological or physical measures that are designed to exclude or prevent unauthorized individuals from obtaining [that] information.’
In the extreme hand of the law, some have argued that Canadians who use VPN services to access US TV may well be technically guilty of an offense that carries criminal charges in the US. However more recently in a Forbes article giving US readers instructions on how to use VPN’s to watch the Sochi Olympics, Mitch Stoltz, a staff attorney with the Electronic Frontier Foundation, was quoted that “While there are differences among the courts about the use of masking IP addresses to gain access to a site, it is pretty well established that simply violating the Terms of Service alone is not sufficient to warrant a violation of the Computer Fraud and Abuse Act.”
In Canada, the Copyright Act and the Digital Privacy Act govern how users access copyrighted media content and also what privacies are expected for consumers of the online experience. Recent changes to the Acts have Canadian internet privacy experts like Michael Geist concerned, particularly with the clauses that will require that ISP’s share their customers’ data with ‘any organization that is investigating a contractual breach or possible violation of any law’. Originally the use of a VPN would exclude Canadian consumers from providing their personal data to the traditional ISP, however new policies mean that VPN’s may also be under scrutiny to provide data logs of customers’ online activities. In other words, a VPN or an ISP could be subpoenaed to provide a list of their customers, and those individual subscribers could in effect be under examination without even knowing it, where they may be prosecuted for breaches to the Copyright Act.
In Canada we do not as yet have a case similar to the Breyer ruling that sets a precedent for how the law will address online activities conducted under the mask of a VPN. However we do have the precedent case of Voltage Pictures in the US requesting Canadian-based Teksavvy to hand over the private information of subscribers who it claimed had infringed copyright regulations. The outcome of this case required Teksavvy to hand over its data logs to the US company, but with significant caveats including that Voltage Pictures could not contact any Canadian subscriber unless the text of the correspondence was approved through the Canadian court.
Although Wajam’s deployment of a free VPN service may be legal in its own right, Canadian subscribers who use it to access geo-blocked media content do so at their own risk. We may need to wait until a first case goes to court in Canada to fully understand how our laws will address the use of VPNs to access geo-blocked media content.