John Z Black

John Z Black Mar 27, 2026 Privacy & Digital Rights #vpn #nsa #surveillance #privacy #fisa #fourth-amendment

Here’s a fun one. The tool millions of Americans use to protect their privacy might be the exact thing getting them flagged for warrantless government surveillance.

Six members of Congress sent a letter to Director of National Intelligence Tulsi Gabbard this week demanding answers about a legal loophole that, if it’s being exploited, flips the entire premise of consumer VPN marketing on its head.

Here’s how it works. Section 702 of FISA allows the NSA to conduct warrantless surveillance of non-US persons. No warrant required, as long as you’re not American. Executive Order 12333 goes further, authorizing bulk collection of communications where the location of the parties is unknown, and it presumes those unknowns to be foreign until proven otherwise.

Now connect the dots. When you use a VPN, your traffic routes through a server, often in another country. From a signals intelligence standpoint, your communications may appear to originate from that foreign server. Under a literal reading of EO 12333, that unknown origin gets presumed foreign. Foreign means no warrant. No constitutional protection.

You haven’t done anything wrong. You’ve done exactly what privacy advocates told you to do.

The congressional letter is an inquiry, not an indictment. Nobody has proven agencies are systematically doing this. What the six lawmakers, Senators Wyden, Warren, Markey, and Padilla, plus Representatives Jayapal and Jacobs, are asking is whether anyone has ever checked. They want to know what policies, if any, exist to prevent this from being used as legal justification to surveil Americans without a warrant.

Gabbard hasn’t responded.

The irony is almost poetic. The NSA has, in various contexts, recommended VPNs as a security measure. So has the FBI. The federal government told Americans VPNs protect them with one hand. With the other, the legal architecture may have been quietly treating VPN use as a route around the very protections those Americans thought they had.

Maybe robust safeguards exist and Gabbard will explain them. Maybe the concern is legally unfounded. Or maybe she won’t respond at all. What the lawmakers haven’t claimed is proof this is happening. What they have claimed is that the legal mechanisms exist to allow it, and nobody has officially said it isn’t.

That gap between what the law permits and what the public has been told is exactly what congressional oversight is supposed to close.

If you use a VPN, you’re probably fine. Probably. But “probably” is doing a lot of heavy lifting in a sentence about your constitutional rights.

The legal argument that could turn your VPN into a surveillance flag, and the six lawmakers demanding answers about it.