- Six Democratic lawmakers are investigating whether using a VPN can deprive citizens of their right to privacy.
- Intelligence agencies operate under default presumption that unknown traffic is foreign, they warn
- The FBI and NSA have historically recommended using a VPN to ensure 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 adopted privacy tool could inadvertently make some users a target for U.S. intelligence agencies.
Six Democratic lawmakers have formally demanded answers from Director of National Intelligence Tulsi Gabbard. The main concern is whether Americans using commercial VPNs will be misclassified as foreigners under U.S. surveillance law, potentially stripping 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 privacy online.
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Yet the open letter asserts that by masking a user’s true location, these services could lead intelligence agencies, which assume that communications of unknown origin are foreign, to inadvertently waive the privacy protections to which U.S. citizens are legally entitled.
Why VPN traffic could be a target
The problem stems from how U.S. intelligence agencies conduct their 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 massive amounts of data from Americans 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 is often mixed. To an intelligence agency carrying out mass collection, an American routing his traffic through a server in Europe may appear identical to a foreign citizen.
The letter explicitly references declassified guidance stating that, under NSA procedures, a person whose location is unknown is “presumed to be a non-U.S. person unless specifically informed otherwise.”
Because the VPN hides the user’s actual location, this default assumption of being “foreign” could theoretically draw U.S. traffic into the net of warrantless surveillance.
Lawmakers do not say such surveillance actually exists because specific details regarding such operations remain confidential. Instead, they demand that the director of national intelligence “publicly disclose whether Americans who use commercial VPN services risk being treated as aliens under U.S. surveillance law.”
One of the signatories, Sen. Ron Wyden, who serves on the Senate Intelligence Committee, has long used his position to draw attention to possible excessive surveillance.
As the debate over renewing Section 702 continues in Congress, this investigation adds an important new dimension to the privacy debate, challenging the government to reconcile its own conflicting views regarding digital security.
The VPN industry’s reaction
Christine Bannan, senior public policy manager (US) at Proton, the vendor behind Proton VPN, told TechRadar that “this ambiguity over how US VPN users will be treated under FISA 702 highlights the abuse of mass surveillance systems to spy on law-abiding people.”
“Proton supports reforms that would protect everyone’s right to privacy, regardless of their nationality,” she added.
Gytis Malinauskas, head of legal at Surfshark, also told TechRadar that while the company can’t comment on specific government surveillance laws or reforms, it “firmly believes that the use of an essential tool for cybersecurity should never result in a decrease in protection.”
“Our top priority is to protect users’ digital security,” Malinauskas said. “When someone uses our VPN, their internet traffic is encrypted without exception in every country in which we operate.”
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