#CyberFLASH: IP Addresses As Personal Information: The Canadian And EU Positions Contrasted

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The October 19, 2016 judgment of the European Court of Justice in the matter brought by Patrick Breyer against the Federal Republic of Germany (the “EU Decision”) raises the issue of whether an IP address is personal information under the EU Directive 95/46/EC and provides an interesting comparison with the Canadian perspective.

The EU Decision

As we have covered on this blog, in the EU Decision, Mr. Breyer claimed that the Federal Republic of Germany had no right to retain the IP address from the device he used to search for information on various government websites. He contended that his IP address is personal information that the website operator may keep only for the purpose of facilitating access to the site and not for general purposes such as safeguarding the security of the site or fending off cyber-attacks, such as denials of service.

The Court of Justice held that where third parties, such as internet service providers (“ISP”), have subscriber information that can be legally accessed by the website operator and used in conjunction with the IP address to identify the visitor, the IP address is personal information. The Court seemed to leave open the question of whether the IP address would constitute personal information if the holder of it could not reasonably or legally obtain the other information needed to identify the owner of the address. In so doing, it adopted a “relative” definition of personal information.

The Court also held that individual states could not pass legislation that forbids the use of an IP address for any purpose other than facilitating network access and billing.

The Canadian Perspective

The EU Decision provides an interesting contrast with the view of the Office of the Privacy Commissioner (“OPC”) in Canada. In a research paper published in May 2013, the OPC revealed that an IP address, combined with other publicly available information, even without any access to the ISP subscriber records, may permit identification of the owner and his or her web-browsing or other activities. Based on this finding, an IP address may in many circumstances be personal information regardless of whether the ISP subscriber records linking that address with an individual are legally accessible to the organization collecting the IP address. Thus, in Canada, IP addresses may be treated as personal information in more situations than in the EU.

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#CyberFLASH: Movie studios are pressuring Netflix to block VPN and DNS users

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Accessing U.S. Netflix in Canada might be almost impossible at some point in the near future.

According to Torrentfreak, Simon Bush, the CEO of AHEDA, an Australian industry group that represents big movie and television studios like Twentieth Century Fox, Warner Bros, Universal, Sony Pictures and many more, are actively lobbying Netflix and other streaming platforms to block and potentially ban users who subscribe to geo-unlocking VPN and DNS services.

In Australia, a region where Netflix isn’t officially available, approximately 200,000 are accessing the platform through VPN services, and because of this the Australian market seems to be AHEDA’s first target. Netflix also has plans to officially launch its streaming online video service at some point in the near future and it’s likely that this will play into the decision to block VPN and DNS users.

In an interview with Cnet, Bush explained AHEDA is in “discussions” with Netflix to block Australians from accessing the platform. If Netflix implements a system to block Australians from accessing U.S. Netflix, it’s likely they’ll also block Canadians from accessing other regions of Netflix as well, rendering DNS services like Unblock-Us useless.

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Thousands of Canadians are accessing U.S Netflix

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More Canadians are pretending to be Americans than ever, but it’s only so they can watch better Netflix.

Canadians are bypassing Netflix region locks and watching television shows and movies that are supposed to only be available to American Netflix subscribers.

In order to do this, people are changing their device’s IP addresses — whether it’s their game console, personal computer, phone or tablet — by enabling a virtual private network (VPN). Since IP addresses, the electronic code that lets a server know which device on the Internet is which, are assigned geographically, giving your device an American IP makes Netflix think you’re an American, and stream all the extra content your way.

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Every click you make: Feds consider how closely they’ll watch Canadians online

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OTTAWA — The federal government is restricting how closely it watches Canadians online.

New rules are now in place governing the use of data that’s gathered when Canadians visit government websites, the first comprehensive guidelines since Ottawa went online nearly 20 years ago.

But the rules don’t cover the data available to the government via social media sites that are set up by individual departments, which operate beyond the bounds of federal policy.

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