Eugen Leitl forwarded:
The constitutional question is whether users have a "reasonable
expectation of privacy" in VOIP phone calls. Since the 1960's, the
Supreme Court has found a 4th Amendment protection for voice phone
calls. Meanwhile, it has found no constitutional protection for stored
records. In an article coming out shortly from the Michigan Law Review,
I show why VOIP calls quite possibly will be found NOT to have
constitutional protection under the 4th Amendment. It would then be up
to Congress to fix this, or else have the Supreme Court change its
doctrine to provide more protections against future wiretaps. Article
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=490623 .
Call me cynical (no... go ahead), but if VOIP is found to have no 4th
Amendment protection, Congress would first have to agree that this *is*
a problem before thay could "fix" it. Given the recent track record of
legislators vs. privacy, I'm not at all confident Congress would
recognize the flaw, much less legislate to extend 4th Amendment
protection. After all, arent more and more POTS long-distance calls
being routed over IP? The only difference, really, is the point at
which audio is fed to the codec. If the codec is in the central office,
it's a "voice" call. If it's in the handset or local computer, it's
VOIP. I think we can count on the Ashcroftians to eventually notice
this and pounce upon the opportunity. And as for the SCOTUS, all they
have to do is sit back on a strict interpretation and such intercepts
aren't "wiretaps" at all.
--
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