Apple tells judge 200-year-old law can't unlock iPhones

But the company said it has the "technical capability" to extract data in one-in-ten iPhones.

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(Image: CNET/CBS Interactive)

If you thought a 200-year-old law could have any effect today, you'd probably apply it to basic "commandment" issues, like murder, foreign invasions, stealing sheep -- those sorts of things.

But when the government digs up the legal dregs from a year where George Washington was elected the first US president, the French Revolution started, and Thanksgiving became a thing, you can be fairly suspicious that its case is hanging by a thread.

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In a brief filed Monday (provided by The Wall Street Journal), Apple told a New York judge that it is "impossible" to access data stored on iPhones and iPads running the latest software, arguing that it would be "unduly burdensome."

To many, that sounds like a cop-out, like Apple can't be bothered or it would be too much work -- but you would be wrong.

The All Writs Act of 1789 gives a court the "authority to issue [court orders] that are not otherwise covered by statute." To stop a court overreaching or using it as a blanket warrant for anything, a court can't use the act if there is too much burden.

Here's how it works.

Apple included full-disk encryption with iOS 8 that scrambles an iPhone or iPad's data when protected with a passcode, mostly in response to leaks detailing massive government surveillance that targeted, among other platforms and services, Apple's own products. Forcing Apple to reverse that entire process just to turn over data that the government wants is what Apple is calling "substantially burdensome," in that it would lead Apple to undo all the work it has done in response to -- arguably -- laws that have put the company in a sticky legal position in the first place.

The EFF sums it up simply: "Compelling a company to re-engineer a product designed to provide robust encryption is the definition of unreasonably burdensome because it undermines the basic purpose of the product."

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The company said that this applies to the 90 percent of iPhones and iPads that are running iOS 8 or later. But for the 10 percent of devices running earlier versions of iOS, forcing Apple to extract data for the government would "threaten the trust between Apple and its customers and substantially tarnish the Apple brand."

US Magistrate Judge James Orenstein, who's presiding over the case, previously shared doubt that the All Writs Act, written during a time when data barely existed and multinational corporations were essentially monarchies, could have any authority in this case.

But, as Motherboard notes, "by publicly asking Apple to brief the court on whether the government's request is even feasible or not burdensome, he's inviting that debate into his courtroom."

The case remains under seal in a Brooklyn court.

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