A statute can make an act criminal even if that act is never prosecuted.
The request he provide letters threatening criminal prosecution, case history of criminal prosecution, etc, is because that is what I provided when he was attempting to claim the Russian hackers couldn't have possibly been criminal. He also lied in claiming that OSX had to be distributed for their actions to be criminal, which I quoted and linked above, making his current claims that personal backups are somehow criminal instead of the Russian hackers all the more ludicrous.