Yes and that even seems to be missing the key issue - if a system's legislative body is hostile to basic tenants of liberal democracy then expecting the courts to act as a protective buffer is at best a stalling tactic to delay the inevitable by a few years. It is almost pointless fighting once that sort of law gets in, the powers that be think mass spying is OK and are committed to finding a way. The courts can't protect people from that sort of pressure, the only way to resist is to have people in power who think mass spying is bad. The US failed that test and it looks like Europe will too - very distressing for the prospects of the liberal project.