MADLANGA J
with children. This is an issue that affects children who are the subjects of surveillance
and those who are not. Must a special carve out be made only for the second category
of children, or for both categories? If for both categories, must there be a distinction
that gives recognition to the fact that children in the first category are the subjects of an
interception, and, if so, what should the nature of the distinction be? These possibilities,
if not imponderables, underscore the fact that this is just too unfirm a terrain for us to
venture into under the circumstances in which the issue has been raised before us.
[123] To summarise, it is not in the interests of justice to decide the issues concerning
communications of children and civil society actors. We would have benefited from
their ventilation before, and determination by, the High Court.
Bulk communications surveillance
[124] According to the respondents, bulk surveillance is—
“an internationally accepted method of strategically monitoring transnational signals,
in order to screen them for certain cue words or key phrases. The national security
objective is to ensure that the State is secured against transnational threats. It is . . .
done through the tapping and recording of transnational signals, including, in some
cases, undersea fibre optic cables.”
It may also be explained to relate to “intelligence obtained from the interception of
electromagnetic, acoustic and other signals, including the equipment that produces such
signals. It also includes any communication that emanates from outside the borders of
[South Africa] and passes through or ends in [South Africa].”156 Bulk surveillance thus
involves, inter alia, the interception of all internet traffic that enters or leaves South
Africa, including the most personal information such as emails, video calls, location,
and browsing history.
156
High Court judgment above n 8 at para 143.
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