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Norman Conquest, King Edward, cyber pathogen and illegal gambling all emerge in Apple v FBI

But it actually makes more sense than that

And then come the legal arguments

Unfortunately, we then hit the legal arguments. Which is where, ultimately, the decision is going to be made.

In a slightly worrying echo of the fact that the FBI is relying on the All Writs Act, which was first introduced in 1789, to argue its case, the FLEOA/ALA/NSA filing [PDF] has also gone to old law to make a modern case: a 1928 state court decision.

Even more amazingly, it quotes that 1928 decision referring even further back in time. This is the quote from Justice Cardozo in the 1928 New York case of Babington vs Yellow Taxi Corp:

As in the days of Edward I, the citizenry may be called upon to enforce the justice of the state, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.

In case you're wondering, Edward was born in 1239 and died in 1307. But not content with quoting the traditions of an ancient English king (wasn't there some kind of American revolution in 1775?), the paper then stretches even further back to before 1066 and the Norman Conquest. No, seriously.

It quotes the Supreme Court (in 1895) when it said: "The basic concept that every citizen can be compelled to assist in the pursuit or apprehension of suspected criminals has ancient Saxon origins, predating the Norman Conquest..."

We get what law enforcement is trying to do here – demonstrate an accepted concept that goes way back in time – but it would be nice to hear a legal opinion that stemmed from events where people weren't still using bows and arrows and Charles Babbage's Difference Engine has been invented.

It's also worth briefly noting that, as FBI director James Comey said earlier this week in Congress, it is relying on the 1977 case of the US government against the New York Telephone company for its interpretation of the 1789 All Writs Act.

That case saw the telephone company obliged to allow investigators to wiretap a group of illegal gamblers and listen in to their conversations. The FBI and the FLEOA/ALA/NSA argue that this interpretation is actually less intrusive than in the Apple iPhone case because the "data" on the iPhone is "at rest," whereas the gamblers' conversations were real time.

It would be just as easy to argue, however, that the court ordered the New York Telephone company to grant investigators access to its existing systems to listen in. Apple has noted, quite rightly, that the FBI is asking the company to actively develop a system in order for them to carry out investigations, rather than allow them access to an already existing system.

Cyber what?

And then of course there is the term produced by San Bernardino County District Attorney, Michael Ramos, which in the course of a single day has become its own meme due to its failure to exist in any meaningful form: "cyber pathogen."

Using ancient history to argue for the digital age is one thing. Making up a completely new term is something else.

"The iPhone is a county-owned telephone that may have connected to the San Bernardino County computer network. The seized iPhone may contain evidence that can only be found on the seized phone that was used as a weapon to introduce a lying dormant cyber pathogen that endangers San Bernardino's infrastructure," argued Ramos, to immediate mockery.

The website is already up and links to a sarcastic takedown of Ramos' effort at persuasive argument.

But before everyone gets too excited about how poor the FBI's legal case is, it's worth considering the fact that Apple's argument also falls back on an ancient document. Sure, it's the 1787 Constitution of the United States, but Apple's core arguments that the FBI is breaking its various amendments are shaky at best.

For example, it claims that the First Amendment (1791) is broken because, apparently, code is speech and by insisting Apple create a version of iOS that will allow the FBI to break into the phone, it is compelling speech. Hmmm.

Not only that, but Apple argues the Fifth Amendment (1791) is also broken through its due process clause because the FBI order is arbitrarily depriving Apple of its liberty. Really?

But in what may be the Apple equivalent of the "cyber pathogen," a paper in support of its stance from Lavabit (a discontinued encrypted webmail service) argues that the court order breaks the Thirteenth Amendment (1865) – that's right, the one abolishing slavery. How does that work exactly? We don't yet know because the proposed brief has yet to arrive.

It is worth noting, however, that Lavabit does not actually exist any more, and Apple has chosen not to feature its defense on its page of court briefs, joining the law enforcement community's arguments in not being recognized by Apple.

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