A group of six Democratic lawmakers is calling on the Director of National Intelligence, Tulsi Gabbard, to clarify whether Americans utilizing commercial VPN services might be categorized as foreigners under U.S. surveillance laws. Such a classification could potentially strip these individuals of their constitutional protections against warrantless government surveillance.
In a letter addressed to Gabbard on Thursday, the lawmakers expressed their apprehension that the use of VPNs, which mask a user’s actual location, could lead intelligence agencies to consider communications of uncertain origin as foreign. This situation raises the risk that Americans might inadvertently forfeit their privacy rights.
Various federal agencies, including the FBI, NSA, and FTC, have advised consumers to employ VPNs to safeguard their privacy. However, following these recommendations may unintentionally place Americans at a disadvantage regarding the very protections they are trying to secure.
The letter was co-signed by progressive Democratic Senators Ron Wyden, Elizabeth Warren, Edward Markey, and Alex Padilla, along with Representatives Pramila Jayapal and Sara Jacobs.
This issue primarily impacts Americans who access VPN servers situated in other countries—a common practice among millions who seek to bypass geographical content restrictions or utilize default settings. Consequently, their internet traffic could be misclassified as that of a foreigner.
An active, contentious program permitting warrantless surveillance allows the U.S. government to capture substantial volumes of electronic communications from individuals abroad, which inadvertently includes private messages of Americans that the FBI can review without a warrant. This program, sanctioned under Section 702 of the Foreign Intelligence Surveillance Act, is set to expire next month and has sparked a vigorous conversation in Congress about potential reforms aimed at safeguarding Americans' privacy.
The letter cites declassified guidelines indicating a presumption: according to the NSA's targeting protocols, individuals whose locations are unknown are presumed to be non-U.S. persons unless stated otherwise. A similar presumption is applicable within Department of Defense signals intelligence operations.
Commercial VPN services operate by directing users' internet traffic through servers globally. For instance, an American user connecting to a server in Amsterdam may appear indistinguishable from Dutch nationals to intelligence agencies monitoring communications.
It's important to note that the lawmakers' letter does not assert that American VPN traffic has been collected under these surveillance initiatives, as such information is classified. Instead, they are seeking clarification from Gabbard on the potential ramifications of VPN usage concerning the privacy rights of Americans.
Senator Wyden, a member of the Senate Intelligence Committee and a proponent of transparency, is among those emphasizing the need for clarity. He is recognized for his efforts to bring attention to surveillance practices through public remarks, often addressing details he is unable to disclose publicly.
Furthermore, the letter raises alarms about another surveillance authority—Executive Order 12333—a directive originating from the Reagan administration that governs a significant portion of the intelligence community's foreign operations. This order permits more extensive bulk collection of foreigners' communications with fewer limitations compared to Section 702 and lacks the congressional oversight that the latter requires, relying solely on guidelines approved by the U.S. Attorney General.
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