^ luke - I completely agree with everything you said (except the part about me believing the free market is alive and well)
The part you highlighted was phrased poorly. My primary point throughout the whole thing was that if you use a VPN you aren't going to have to worry about any of this shit.
In order for your ISP to know what you're doing while the VPN is enabled, they would have to get the records from the VPN and then sort through and decrypt the packets. If you're using any service that will willingly hands off your private browsing, sharing or search patterns with an identifier you shouldn't be using them in the first place. But I haven't heard of too many ISPs, let alone VPNs, that will willingly do that unless faced with legal pressure anyway. Furthermore, should your ISP request this information and your VPN complies without your consent or a subpena they're putting themselves in the crosshairs for a lawsuit, specifically if users are using the VPN for business reasons where IP and proprietary business wares are potentially present.
My point wasn't that I'm okay with this, because I'm not. My point was in response to a comment that insinuated this would give the ISPs some kind of legal authority enabling them to get a subpena for the encrypted data transferred while you were using a VPN without anything more than high bandwidth usage or the websites you visit as probable cause. That simply isn't the case, not too many courts are going to even come close to touching the 4th and 14th amendment protections because of high bandwidth use, and if they did, another court would likely overturn the original subpena order and then any evidence obtained from the VPN would be considered "fruit of the poisonous tree" and not allowed to be used against you anyway. And for the reasons I pointed out in my previous post, all of this is unlikely to happen anyway.
Like I said, they'll attempt to make an example out of a few people like they did during the early days of assault on Napster. Then everyone will move on, except this time the public will be in an uproar over the charges existing and how they came about the information used to bring those charges/civil suits in the first place. The web is a vastly different place than it was 10-12 years ago. It is more regulated and a lot of that is probably a good thing. But the public perception about an over intrusive government and an even more intrusive private sector has also changed.
In the end, ISPs will find that complying with this will ultimately be bad for business. People will get fed up and start tethering their phones to the pc and skip going through traditional net providers altogether. Wireless carriers aren't going to cut people off no matter what they're doing because the service plans are the only reason people stay with them and not a less expensive pre-paid or pay as you go option. If their internet gets cut off from the phone, more people will start using pre-paids that include texting, because that's a viable and less expensive alternative because if their internet gets cut off from their mobiles, having a smart phone is pointless.
As soon as enough people, and it wouldn't take all that many in the grand scheme of things, left traditional ISPs and their subscriptions started moving on a downward trend, they'd quit playing ball with Hollywood and start trying to regain their customers. It's not a free market, it's a manipulated one and as soon as the customer base starts manipulating it in the same way the service providers do it will be a balanced market. I think a balanced market is about all we can hope for in the foreseeable future.
Besides, the only people that are going to be caught up in this stuff are going to be "middle class" parents and their kids and old people. They'll get sued, the media and internet will cover it. The public will go apeshit. The ISPs will get all kinds of bad press. And then they'll quietly stop sending red flags to the MPAA and RIAA and no one will even remember this conversation happened in 5 years.