If it's unconstitutional, we don't need new laws to fix it. The existing laws (the constitution) need to be enforced. It's a failure of the judiciary, not the legislative branch.
You can't take it for granted that it is, in fact, unconstitutional, just because the EFF says so. The EFF has its interpretation of the 4th amendment, just like the ACLU. They take very expansive views of what those amendment means. Taking narrower views is not a "failure of the judiciary." It's disagreement over a document that can legitimately be interpreted in different ways.
Furthermore, what holds the Executive in check is the combined vigilance of Congress and the Judiciary.
The Judiciary must show reasonable deference to Congress when it comes to defining such things as "due process". If Congress chooses to create a due process in which it seems very easy for the Executive to get its way (e.g. the FISA court), on what legal basis is a sitting judge supposed to stand in the way? Unless it is completely obvious by existing legal precedent, a federal judge might rightly suppose it is the job of the Appellate and SCOTUS to define any new yardsticks.
FISA courts, PRISM, NSA, drone assassinations,... Congress holds in their hands the power to define the terms of the debate. That they choose not to is simply because the minority and majority leadership in both houses of Congress more greatly fear having to explain their own position to the American people, than they fear any particular arguable abuse by this president.
The problem is with qualifying violations. Current interpretations of 'spying' specify that violations don't occur until a human being queries the database, so technically 4th Amendment violations aren't occurring by the data being automatically stored and indexed by the NSA's vast data collection efforts.
There will also be fights about how 'public' data is, and there will be arguments about how anything shared on Facebook falls under the definition of 'public data.'
Congress can very easily act to define the terms of the debate on these legal questions by defining "due process" (and similar factors). The courts are obliged to show reasonable deference to Congress.
Congress chooses not to, and that is implicit acceptance by the majority and minority leadership in both houses of Congress.
Enforcing the laws is the job of the Executive, not the Judicial, branch. The judiciary can only weigh in when a litigant with proper standing brings a case before the courts.
