- Six Democratic lawmakers are seeking clarity on whether using a VPN can deprive citizens of their privacy rights
- Intelligence agencies operate under a default assumption that unknown traffic is foreign, they warn
- The FBI and NSA have historically recommended using a VPN for privacy
Millions of Americans rely on the best VPN to secure their data on public Wi-Fi or to bypass geo-restrictions. However, a new congressional investigation suggests that this widely used privacy tool may inadvertently make some users a target for US intelligence agencies.
Six Democratic lawmakers have officially pressed Director of National Intelligence Tulsi Gabbard for answers. The central concern is whether Americans using commercial VPNs are being misclassified as aliens under US surveillance laws, potentially depriving 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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Still, the open letter argues that by obscuring a user’s true location, these services could lead intelligence agencies, who assume communications of unknown origin to be foreign, to inadvertently waive the privacy protections to which American citizens are legally entitled.
Why VPN traffic could be a target
The problem stems 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 they often sweep up vast amounts of data from U.S. processes.
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 confused. To an intelligence agency doing bulk collection, an American routing their traffic through a server in Europe may appear identical to a foreign national.
The letter explicitly refers to declassified guidelines stating that, under NSA procedures, a person whose location is unknown “is presumed to be a non-US person unless there is specific information to the contrary.”
Because the VPN hides the user’s actual location, this default assumption of being “foreign” could theoretically draw US traffic into the dragnet of warrantless surveillance.
The lawmakers do not claim that such surveillance is definitively taking place, as specific details regarding these operations remain secret. Instead, they demand that the Director of National Intelligence “publicly disclose whether Americans who use commercial VPN services are at risk of being treated as aliens under US surveillance laws.”
One of the signatories, Sen. Ron Wyden, who serves on the Senate Intelligence Committee, has long used his position to draw attention to potential surveillance overreach.
As the debate over the renewal of Section 702 continues in Congress, this study adds a significant new dimension to the privacy conversation and challenges the government to reconcile its own conflicting advice regarding digital security.
The VPN industry’s reaction
Christine Bannan, Senior Public Policy Manager (US), Proton, the provider behind Proton VPN, told TechRadar that “this ambiguity about how US VPN users will be treated under FISA 702 underscores the misuse of mass surveillance systems to spy on law-abiding people.”
“Proton supports reforms that will protect the privacy of everyone, regardless of nationality,” she added.
Gytis Malinauskas, Head of Legal at Surfshark, also told TechRadar that while the company cannot comment on specific government surveillance laws or reforms, it “firmly believes that using a tool critical to cybersecurity should never result in diminished protection.”
“Our top priority is protecting users’ digital security,” Malinauskas said. “When someone uses our VPN, their internet traffic is encrypted without exception in the countries we operate in.”
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