You mention the dog sniff case and the heat sensing case as examples of both sides of fence. I would say that the idea of a packet filter pulling out mailcious traffic is more like the heat sensor than the dog sniff. As many who read SecurityFocus would know, the accuracy of any packet sniffing system scanning the public internet is going to be very low. False positive hits that match "illegal activity" would likely be a hundred, a thousand or even a hundred thousand times more likely to be encountered than actual illegal activity.

The only system that could have a chance at even 1% accuracy, let alone 10% or 100% is an artificial intelligence based system which constantly learns about new human behavior in relation to illegal activity.

My understanding from the heat sensor case is that the possibility of a false positive is essentially the largest privacy threat for citizens who are not breaking the law and this is what makes the use of heat sensors unconstitutional. By extension, if the lawyers arguing in front of the supreme court regarding the dog sniff case were better prepared, they could have argued that cooking supply poppy seeds trigger dog sniffs for opium, or that a skunk spray triggers dog sniffs for marijuana and possibly have swayed the court's opinion.

In any event, the stark reality that human interpretation would be required to discern legitimate activity from criminal activity proves that the privacy violation is far too great for this technology to be employed in a constitutional manner.

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