- Six Democratic lawmakers seek clarity on whether using a VPN can strip citizens of their privacy rights
- Intelligence Agencies Operate Under Default Presumption That Unknown Traffic Is Foreign, They Warn
- The FBI and NSA have historically recommended using a VPN for privacy reasons
Millions of Americans trust the best VPN to protect their data on public Wi-Fi networks or to bypass geo-restrictions. However, new congressional research suggests that this widely adopted privacy tool could inadvertently make some users targets of US intelligence agencies.
Six Democratic lawmakers have officially pressed Director of National Intelligence Tulsi Gabbard for answers. The main concern is whether Americans using commercial VPNs are being misclassified as foreigners under US surveillance law, which could strip them of their constitutional rights.
The irony is not lost on lawmakers. Several federal agencies, including the FBI, NSA, and Federal Trade Commission, have historically recommended that consumers use VPNs to protect their online privacy.
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However, the open letter argues that by concealing a user’s true location, these services could lead intelligence agencies, which assume communications of unknown origin to be foreign, to inadvertently waive privacy protections to which U.S. citizens are legally entitled.
Why VPN traffic could be a target
The problem arises from how U.S. intelligence agencies conduct surveillance under some controversial programs, such as those authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA) and Executive Order 12333. These are designed to intercept communications belonging to foreign targets, but often sweep up massive amounts of Americans’ data in the process.
Because a virtual private network (VPN) routes traffic through VPN servers that can be located anywhere in the world, data from thousands of users from different countries often gets mixed up. To an intelligence agency conducting mass collection, an American routing his traffic through a server in Europe may appear identical to a foreign citizen.
The letter explicitly references declassified guidelines that state that, under NSA procedures, a person whose location is unknown “is presumed to be a non-U.S. person unless there is specific information indicating otherwise.”
Because the VPN hides the user’s actual location, this default assumption of being “foreign” could, in theory, drag American traffic into the warrantless surveillance network.
Lawmakers do not claim that such surveillance is definitely taking place, as specific details about these operations remain secret. Instead, they demand that the Director of National Intelligence “publicly disclose whether Americans who use commercial VPN services risk being treated as foreigners under US surveillance law.”
One of the signatories, Senator Ron Wyden, who sits on the Senate Intelligence Committee, has long used his position to draw attention to potential surveillance overreach.
As the debate over renewing Section 702 continues in Congress, this research adds a significant new dimension to the privacy conversation, challenging the government to reconcile its own conflicting advice on digital security.
The reaction of the VPN industry
Christine Bannan, senior director of public policy (US) at Proton, the provider behind Proton VPN, told TechRadar that “this ambiguity about how US VPN users will be treated under FISA 702 underscores the abuse of mass surveillance systems to spy on law-abiding people.”
“Proton supports reforms that would protect the privacy rights of everyone, regardless of nationality,” he added.
Gytis Malinauskas, Surfshark’s head of legal affairs, also told TechRadar that while the company cannot comment on specific government surveillance laws or reforms, it “strongly believes that the use of an essential tool for cybersecurity should never result in a decrease in protection.”
“Our top priority is protecting users’ digital security,” Malinauskas said. “When someone uses our VPN, their Internet traffic is encrypted without exception in all the countries in which we operate.”
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