CNet reports:

Authorities have finally begun examining the computers, server, and other electronic gear seized from a Gizmodo editor as part of the investigation into a missing iPhone prototype.

* * *

[The district attorney] said his department and Chen’s attorney, Thomas Nolan, came to an agreement on how Chen’s computer and other equipment could be searched.

(Emphasis added.)

Told ya—in my first post on this. The shield law is not a carte-blanche to commit crimes. Nor it is an absolute bar on the admission of relevant evidence to the prosecution of crimes. Nor is it an absolute bar on the conduct of an investigation into such crimes. It’s not surprising that so much of the non-legal tech community swallowed that red herring from Gawker’s self-righteous attention whoring leadership. It is a bit surprising how many people refused to believe they were wrong after they were told by no lesser lights than Eugene Volokh, a law professor (not just little old me), that they had it wrong.

That the search would go forward was inevitable. That Chen’s attorney agreed to it is proof positive that he too thought that the DA would get a similar result in the end. At least in this process, there is some way of keeping totally irrelevant things out of the public record. Embarrassing pictures. Whatever. Irrelevant stuff. But e-mail exchanges with what are legally called “co-conspirators” or “accessories” and stuff like that are things the cops can look at, even if protected by the shield law, the attorney-client privilege, or any other privilege I can think of. The only thing that might have protected Chen here (I’m not joking) is if he was an agent of the government able to invoke the state secrets privilege. Otherwise, everything else has what are usually called “crime-fraud” exceptions.

And we’re not even talking yet about whether it’s admitted in a trial. We’re talking about an investigation.

All of this was used by Gawker to throw stones at Apple. It was used by Apple’s competitors to throw stones at Apple. Apple is a profit-seeking corporation and can handle its own problems, but to criticize its actions as a corporation while promoting those of another, be it Gawker, Google, or some disaffected garage Flash shop, while misrepresenting the law is the kind of idiot behavior that is hurting America.

Worse, so many people are shocked to find out what the laws are after they break them. Personally, I believe in the occasional need for civil disobedience. But civil disobedience means you (a) know what the law is, and (b) don’t like it on ethical grounds, and then (c) deliberately break it to force the government to enforce a wicked law in order to try and get them to change it.

To even compare that with what Gizmodo did insults generations of people who have fought for our freedoms. It appears that, at best, Chen et al. did not know what the law was and had what you might call a “deathbed conversion”[1] about the need for absolute journalist shield laws that don’t exist, only after it implicated them. I did not see Gawker on a crusade on this issue before it touched them. I must conclude, like the Karliner Rebbe, that this stems from the evil inclination. It’s simply self-serving behavior at the expense of others in a thinly veiled cloak of nobililty. It’s sickening.

In my opinion, based on what I’ve read, either Gawker’s unlicensed-in-America chief “lawyer” malpracticed and gave Chen bad advice so that he could get a scoop or Chen disregarded that advice. (Or maybe she said nothing, but she made it sound after the fact that she personally had dotted all the ‘i’s.) I suspect it was the former and that he was hung out to dry.

People hear the spin from Gawker and it reinforces the meme that Apple is a “KGB” or “Gestapo” like company (a meme pushed by Gawker itself). They hear that the DA is “breaking the law” for Apple. They hear that Apple sits on some board and then the prosecution is just at Apple’s behest. They hear people sniffing that no other lost cell phone would be treated this way. After that much, everything the hear is through the “Apple is the KGB” filter and it doesn’t matter anymore. The facts don’t matter.

Maybe it would make a difference for some people if they heard that the cops were going easy on this, in fact. And that they were upholding the law. I don’t know. But I won’t have any part of that kind of ignorant behavior.

[1] A “deathbed conversion” implies that you managed to get your faith clear before you died. It may be under duress, and it may be too late, but that doesn’t even express what happened here. It’s more of a post-death conversion. It’s someone dying, getting thrown before a heavenly judge and saying, “oh, now that I see this is real, I should have been nicer.”