The article argues that the extent of surveillance has reached a critical level for democratic societies. However, the jurisprudence of the ECtHR, ECJ and German constitutional court, which never question the extent of surveillance on the structural level, rather aims to legitimize even the most far-reaching measures and thus does not offer effective ex post protection. The introduction of legislative ex ante mechanisms also does not promise to counter the current issues surrounding surveillance measures. Instead, such a mechanism could further legitimize surveillance. The article concludes that while tools to assess the level of surveillance could be helpful when they depart from the premise that the extent of surveillance must be reduced, civil society is best suited to operate and advance these tools in the general discourse.