I agree that the current status of the pen register (it doesn't constitute a search and thus doesn't require probable cause, only that it's "likely" the data wi

I agree that the current status of the pen register (it doesn't constitute a search and thus doesn't require probable cause, only that it's "likely" the data will be relevant) is a bar too low. If it had the same requirements as a search warrant, though, I can't say I register an objection. Beyond that, saying that the government's recourse is to put out a press release that says, "So, we're trying to get into Osama's email, but Google won't let us," is the appropriate way to handle a secret criminal investigation, then I think we'll always disagree.