Earlier quoted context omitted.
I think a new FISA would be a good start. As flawed as the current state of affairs is, its a big improvement over what existed prior to FISA. That law was a constraint on the NSA, probably the most restrictive that was possible during the cold war. Alternatively, the Supreme Court could invent a right,of privacy out of thin air. That might very well happen in time, but the tech community is undermining attempts to l…
"To get to "its not okay for the government to read my email" you have to get rid of the notion that "its okay for Google to read my email." No, you don't. You opt-in to Google reading your mail by using their free service. You can't (easily) opt-out of the government reading everything you do. You have a choice with Google and any other private firm.
In this context, the social norm you're trying to establish is that internet communications are to be kept private, even sacrosanct. The idea of someone reading their e-mail should give people the same feeling as the idea of someone looking into their bathroom window.
You can't rest such a social norm on fine distinctions between the government and private companies. Ordinary people do not hold the government in a unique position of mistrust, and so are not likely to find compelling a norm that only the government must observe. As soon as you say: "well, Google can read my e-mail because I can always choose to use a different provider," you open yourself up to the counter that "well, unlike Google the government has a unique obligation to protect us from terrorists, so it needs to be able to read our e-mail too!"
When it comes to the establishment of a new social norm, it's irrelevant that people are theoretically free to choose a provider that does not violate their privacy. As long as the vast majority of the popular services leverage private data, the social norm that will emerge is that online communications are not something that should be held sacrosanct. As long as people are conditioned to accept Googles' reading their e-mails to target advertising, they will not think of e-mail as a deeply private thing that must be protected, even from the government.
[1] Whether you think Roe v. Wade was correctly decided or not, it's hard to argue that the result was plainly in the text of the Constitution. In Griswold, Justice Douglas didn't rely on "penumbras" and "emanations" despite having clear Constitutional text to hang his hat on!