Sound wave, light wave, whatever. It's still just transmission, so it's nothing, right?
I suppose I could make an argument that when the codec buffers the stream to ram before sending it to the sound card that is a recording
These network packets will have been stored in the memory of the telco's deep packet inspection systems in order to perform the inspection, thus according to you making them real property at the exact point where the telcos would be doing the virtual version of opening your mail.
Neither sound nor light are transmitted by property that can be owned. A person can own the space that the air occupies, but you cannot own the air. However, the sound or light that pass through somebody else's property are not nothing. They can be regulated only when that become a nuisance. If I want to send a morse code signal using a flashlight accross another person's property, they cannot stop me.
making them real property at the exact point where the telcos would be doing the virtual version of opening your mail
That's a very thought provoking point - it does become tangible property at that point. But this brings me back to the contractual nature of the end user's relationship to the network. You do not have an expectation of privacy, until you contract for one. The sniffing that they do does not violate the DMCA because there is no dissemination and because ISP's have some degree of immunity. If they use their network in a stupid way, a competitor will arise that contractually grants an expectation of privacy, and the sniffer loses market share.