I think what this has all really indicated is that the law is not ready for the Internet.
I used to think that imbalance disadvantaged the government.
Now I'm not so sure. I wonder if the tech community will be ready to talk about regulation now that the NSA has shown what a nearly-unfettered government agency with a blank check can really do with TCP/IP.
Regulation of the NSA, sure. Regulation of themselves in the form of the FBI's build-in-backdoors-for-surveillance demands, definitely not. The NSA loves CALEA interfaces.
Well, built-in backdoors would be problematic for the same reason admin panel backdoors or Clipper-chip backdoors would be problematic.
But if the Congress end up extending 'reasonable expectation of privacy' to cover any "common carrier" (which I think is long overdue) I'd be very surprised to see them leave out any ability to surveil, wiretap, etc., at least from the major telecoms. That doesn't need to mean backdoors or warrantless snooping though.
Nobody (except the ACLU, if you phrase the question carefully) will say that court-authorized Title III wiretaps violate the 4A. The questions involve the process, standards, procedures, and scope. Telcos + CALEA == a lost cause. Not so with going up the protocol stack.
I used to think that imbalance disadvantaged the government.
Now I'm not so sure. I wonder if the tech community will be ready to talk about regulation now that the NSA has shown what a nearly-unfettered government agency with a blank check can really do with TCP/IP.