What we think the government should have the power to do based on a common understanding of it's basic legal principles is very different from the actual, literal power that a person and institution has. If someone is doing something and getting away with it, they have that power whether or not it should be viewed as legitimate power or illegitimate power. The actions of law enforcement exist in physical reality, and what you are referring to is what they should have. The EFF is seeking corrective action to bring reality in line with the constitution. "Is" instead of "ought."