Friends and colleaguesI hope you all had a relaxing and joyous holiday.  Here in Chicago, the weather was glorious, the Cubs took home 3 wins and the White Sox continue to play above 500.

So that all can catch up on their work from the long weekend and clear their email in-boxes, I’ve delayed circulating this issue until the 2^nd.

This month, as in most months, I’ll focus on three areas:  corporate governance, alternative dispute resolution (“ADR”), and eDocuments and eDiscovery.  Additionally, I’ve included two articles of general interest for my “Interesting Case of the Month.”

For my corporate governance readers, this month I present two pieces:  one, addressing the often debated question of whether corporate minutes should be detailed or minimalist, and a second reviewing 25+ years of data regarding board diversity and the question whether diverse boards have an impact on corporate performance.

For my ADR practitioner readers, I highlight two arbitration cases.  The first addresses actions that constitute a waiver of an arbitration agreement, and the second discusses the effect of a bankruptcy’s automatic stay on an arbitration.

Regarding eDocuments and eDiscovery, I present a New York case addressing spoliation of evidence and appropriate sanctions under the new Rules.

Finally, for my “Interesting Case of the Month,” instead of court cases this month I present two articles.  The first is for those who are engaged in business with China.  The Chinese Supreme Court issued Interpretations which clarify China’s 2015 anti-bribery law and what constitutes bribery.  A summary of the clarifications is set forth.  The second article is a piece published by Northwestern University’s Kellogg School of Management on the evolving concept of privacy – how our understanding of what is private has evolved and is evolving with changes in culture and technology.

This Month’s Articles

Corporate Governance

• Board Minutes:  Ask 10 lawyers whether meeting minutes should be minimalist or comprehensive, and you’ll get answers at both extremes and at most points in between.  Who to listen to?  Answer:  The Chief Justice of the Delaware Supreme Court!  Leo E. Strine, Jr. is the presiding Chief Justice of the Delaware Supreme Court and author of a 2015 paper published by the Harvard John M. Olin Center For Law, Economics, and Business that addresses the question of minutes and the appropriate level of detail.  It’s a worthy read not just for the answer to this critical and often debated question, but for its insights into how this important jurist thinks.
• Board Diversity:   Proxy advisors, academics, board governance “experts” . . . all urge boards to diversify.  And, boards are diversifying.  So, is diversification making a difference in corporate performance?  The Stanford Corporate Governance Research Institute reviewed the data.  Its answer is presented.

Alternative Dispute Resolution

• Waiver of Arbitration Agreement:  In this May, 2016 decision, the 8^th Circuit Court of Appeals held that an arbitration agreement is waived when court litigation commences and neither party raises the arbitration agreement for several months.
• Effect of a Bankruptcy Stay on Arbitration:  The case presented, In re Johnson,confirms the general rule that a bankruptcy filing stays an arbitration proceeding if the debtor or the debtor’s assets are the subjects of the arbitration, and further addresses the scope of the stay with respect to non-debtor parties.

eDocuments

• Spoliation of Evidence and Remedies for Spoliation Under the New Rules:  The decision presented answers several questions raised by the new Rules, including:  the applicability of the new Rules to pending cases, the standard of review to determine spoliation, the appropriateness of circumstantial evidence in determining what constitutes intentional spoliation, and appropriate remedies for spoliation.

Interesting Case of the Month

• Chinese Anti-Bribery Law Clarification:  On April 18, 2016, two Chinese judicial agencies, the Supreme People’s Court and the Supreme Procuratorate, jointly issued a judicial interpretation of changes to China’s anti-bribery law, including “(i) the types of payments that may constitute a bribe, (ii) monetary thresholds for the seriousness of bribery offenses, (iii) circumstances in which individuals may qualify for leniency, and (iv) ranges for the amount of monetary penalties in bribery cases.”
• Evolving Concepts of Privacy – “Is Reading Someone’s Emails Like Entering Their Home?”:  In this article the authors explore the evolving concept of privacy, and how changing technology and social mores have changed what people consider to be private.

I hope you find one or more of the below articles of interest and worthy of your inbox’s space.

Warm regards,

Jim Reiman

Articles / Corporate Governance

Board Minutes –  Justice Leo Strine

I learned of this article attending a corporate governance conference at which Myron Steele (the recently retired Chief Justice of the Supreme Court of Delaware) spoke.  The question of minutes was raised:  how detailed or “generic” should they be?    J. Steele’s response:  “Read my successor Leo Strine’s article.  His is the only opinion that matters.”

Having learned from personal experience that when a jurist makes a “suggestion” it is wise to follow it, I dug out the article.  It’s a worthy read for a couple of reasons.  First, it is a recent (one year old) statement by the head jurist of the country’s most important business court as to how to document a merger and acquisition (“M&A”) transaction so as to minimize the risk of an adverse result in litigation.  Second, it sets forth a process for board directors to make better M&A decisions.   Lastly, it’s an insight into this jurist’s thinking and personality.  Moreover, it’s a “light” and entertaining read (to the extent that any article on the subject can be entertaining).

For example, when describing the importance of using technology to compare new and prior versions of a document (called “red-lining” or “compare-rite”) and told that technology is insufficient to permit such in some circumstances, Justice Strine writes:

I am told that the United States of America’s technology capacity is not sufficient to allow for the production of a legible PowerPoint redline or compare rite version. Count me as patriotic. My law clerks over the years have demonstrated an ability to do a compare rite version of most anything. If this is the only hurdle, I believe our nation is capable of vaulting it. Only someone who does not like hot dogs, hamburgers, cheesesteaks, lobster rolls, clam chowder, shrimp and grits, jambalaya, pit beef sandwiches, brisket, barbecue ribs, Good Humor ice cream bars, spaghetti and meatballs, fish tacos, Kentucky Fried Chicken, or things fried at state fairs could question our nation’s ability to do this; in other words, only someone who despises America itself.

As to the question at hand – should minutes be minimalist (“short-form”) or detailed (“long-form”) – the Justice states:

“My point . . .is not to urge a long-form over a short-form approach. But it is to urge clarity about the approach taken. 

For everyday board business, for example, it may be impractical for a small or mid-cap company to employ long-form minutes because the company cannot afford the in-house or external legal staff to do such minutes well. In that context, having a policy of using short-form minutes with clarity about what must be captured – the precise issue before the board and the precise action taken – might be optimal.  But even then, there may be situations where it is advisable to deviate from the short-form default. For example, long-form minutes might be advisable if the audit committee is presiding over an important internal investigation and has employed outside counsel to advise it. The board should then document why it is using long-form minutes, and should be clear at full board meetings about how the minutes will be produced.”

OK – so what should be documented?  Answer:  advice given by advisors; decisions made, and; the reasons for each decision.  In the context of a M&A transaction, J. Strine opines:

First and foremost, the business advice given by the financial advisor has to be in the record. When the directors remember that they selected the buyers to target based on input from their financial advisor as well as management, they are entitled to see that in the board books themselves or the minutes, or best of all, both. When the directors receive advice from the financial advisor about winnowing down the buyer pool, it should be documented. At all key stages, and particularly when the process begins to go backward, the input that the directors receive from their independent financial advisors should be documented.

*   *   *

Too often, the record is sanitized to eliminate any real business advice given by the financial advisor about selling strategies, price, the viability of the company’s projections and prospects; in sum, about all the things that matter and is the real reason why the financial advisor has been hired. The point of the sanitization seems to be to ensure that no advice is reflected in the record that would be inconsistent with the limited fairness opinion letter, which is little more than a blanket disclaimer that any reliable advice was given.  

This sanitization is a disservice to the client and the bank itself. If directors are given advice orally, then the directors are entitled to have it documented. If an advisor wants to “unsay something,” the only professional way to do that is to go in the board room and unsay it, and have the record reflect the original advice and the retraction.

Second and more generally, at each important moment of judgment, the record should reflect the reasons why the board acted and upon whose advice.  If particular situations raise conflicts, the record of how the conflicts were taken into account should be made clear. If key financial assumptions, such as base case projections, need to be revised, the reasons why should be made clear, the process for revising them should be included in the record, and the oversight of the revision process, including the role of the financial advisor in that process, explained.”

Leo E. Strine, Jr., “Documenting The Deal:  How Quality Control and Candor Can Improve Boardroom Decision-Making and Reduce The Litigation Target Zone,” The Business Lawyer, Volume 70, May 2015

See also:  Nathan Montgomery, “5 Corporate Governance Tips to Reduce Risk in the M&A Process,” Canadian M&A Perspectives, January 22nd, 2015, which summarizes J. Strine’s article and distills it to 5 practice points.

Board Diversification:  Stanford’s Review of the Data

David F. Larcker and  Brian Tayan of Stanford’s Corporate Governance Research Initiative reviewed the many published research reports analyzing the question whether diversity in the boardroom impacts corporate performance.  “Common wisdom” and the counsel of many proxy advisors, academics and activist investors hold that boardroom diversity yields superior performance.  Indeed, it seems self-evident that a diverse board will generate a broader discussion of issues which in turn will result in superior decision-making.

Unfortunately, the conclusion of Larker and Tayan, after reviewing the data, is that the common wisdom may be wrong.  They conclude:

• The relationship between boardroom diversity and corporate performance is not conclusive.
• Research evidence is highly mixed. Studies have found positive, neutral, and negative effects
• “Diversity for the sake of diversity” tends to harm governance quality, primarily when it leads to forced turnover and the appointment of less experienced directors.
• Efforts to increase boardroom diversity are best addressed through concerted efforts to recruit qualified professionals rather than quotas

The study’s results are presented in the form of a PowerPoint presentation, and are clear and concise.  Anyone seeking data to support an argument on the subject should review the study results.

David F. Larcker, Brian Tayan, “Diverse Boards,” CGRI Research Spotlight Series, Corporate Governance Research Initiative (CGRI), April 2016.

Articles / Alternative Dispute Resolution

Arbitration Waiver

It is well settled law that, except in rare circumstances, when the parties have agreed to arbitrate disputes that arise during the course of their dealings, the courts will honor that agreement and dismiss any law suit that they may file with the courts.  Indeed, it is also well settled law that “[b]ecause of the strong federal policy in favor of arbitration, ‘any doubts concerning waiver of arbitrability should be resolved in favor of arbitration.’”

In the case of Messina v. North Central Distributing, Inc. d/b/a Yosemite Home Décor, the question of what acts constitute a waiver was before the US Court of Appeals, 8^th Circuit.  The Messina Court first reviewed the applicable law, holding

A party waives its right to arbitration if it “(1) knew of an existing right to arbitration; (2) acted inconsistently with that right; and (3) prejudiced the other party by these inconsistent acts.” [citation omitted]  A party acts inconsistently with its right to arbitrate if it “substantially invokes the litigation machinery before asserting its arbitration right, when, for example, it files a lawsuit on arbitrable claims, engages in extensive discovery, or fails to move to compel arbitration and stay litigation in a timely manner.” (citations omitted). To safeguard its right to arbitration, a party must “do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration.” [citation omitted]

Having set out the applicable law, the Court looked at the facts of the Messina case.  There, it found that an apparently enforceable arbitration agreement between the parties existed.  However, it also found that Messina ignored the arbitration agreement when it filed the complaint, and that defendant failed to raise the existence of the arbitration agreement or move to dismiss the court law suit for several months.  Moreover, during the time that the lawsuit was pending, multiple court proceedings occurred, including removing the original lawsuit from state court to Federal Court, and fully briefing and arguing a motion to change venue.  The Court concluded that such acts constituted a waiver of the arbitration agreement.

Yosemite only moved to compel arbitration after it lost the motion to transfer venue. The timing of Yosemite’s actions demonstrates that it “ ‘wanted to play heads I win, tails you lose,’ which ‘is the worst possible reason’ for failing to move for arbitration sooner than it did.” [citation omitted] The district court thus did not err in finding that Yosemite acted inconsistently with its right to arbitration.  Yosemite’s actions caused Messina prejudice because, as the district court found, he “spent considerable time and money obtaining new counsel, partaking in pretrial hearings, and responding to the transfer motion.” Prejudice from a failure to assert an arbitration right occurs when, for example, “parties use discovery not available in arbitration, when they litigate substantial issues on the merits, or when compelling arbitration would require a duplication of efforts.” [citation omitted]   Delay in seeking to compel arbitration “does not itself constitute prejudice.” [citation omitted]   Delay can however combine with other factors to support a finding of prejudice. [citation omitted] (district court did not err in finding prejudice when party seeking arbitration caused “substantial delay,” expenses, and potential duplication of efforts when it “failed to object or move to compel arbitration throughout a year of court proceedings”). 

The take away:  when an arbitration agreement exists and one of the parties ignore the agreement and runs to court, “raise it or lose it.”

The full opinion:  Messina v. North Central Distributing, Inc. d/b/a Yosemite Home Décor, US Court of Appeals for the 8^th Circuit, No. 15–2323, May 10, 2016

Tina A. Syring, “Employer’s Delay Results in Waiver of Arbitration,” Barnes & Thornburg’s BT Currents, May 14 2016

Effect of Bankruptcy Automatic Stay on Arbitration

This case, In re John Joseph Louis Johnson, III, addresses the question of what, if any, impact does a bankruptcy filing have on an arbitration.

Generally, the filing of a bankruptcy stays an arbitration:

Subject to certain exceptions not applicable here, the filing of a bankruptcy petition triggers an automatic stay that both protects the debtor and “safeguards property of the bankruptcy estate.” [citation omitted]

Among other things, § 362(a) [of the Bankruptcy code] stays: 

(1)  the commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that was . . . commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title; [and]

. . . .

(3)  any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate.

[citation omitted]

*   *   *

The automatic stay applies to arbitration proceedings.  [citation omitted]   (“[T]he scope of the automatic stay has been held to encompass post-petition proceedings conducted pursuant to an arbitration clause.”).  And because the stay is automatic, “the debtor does not have to make any formal request that it be issued or that it apply to a particular proceeding.”  [citation omitted].  “Although [non-bankruptcy] court judges generally refrain from proceeding once they are made aware of a bankruptcy filing, the burden is on the creditor not to seek relief . . . in violation of the stay.”  

The general question of the effect of a bankruptcy filing on a pending arbitration being well settled law, the Johnson case examined whether a creditor violated the automatic stay by seeking to enforce an arbitration award not against the debtor, but against non-debtor co-defendants.  Generally, a bankruptcy stay applies not only to stay actions against the debtor personally, but also to actions against the debtor’s property.  Thus, the question whether non-debtor parties to an arbitration are prohibited from continuing their arbitration proceedings when a bankruptcy case has been filed was before the court.

The case has a complicated set of facts, a celebrity debtor, and a multi-million dollar sports contract.  Briefly, the debtor, “Jack” Johnson, a NHL hockey player, after several short term contracts with the LA Kings won a $30 million salary multi-year contract.

After receiving the LA Kings’ “jackpot” contract, Johnson and his parents started borrowing against it.  One creditor was RFF Family Partnership, LP (“RFF”), who claimed a loan of $1,862,500 and that the borrowers granted RFF a personal lien on certain property, including Johnson’s multimillion-dollar player contract.  The loan’s security agreement provided for binding arbitration upon any disputes and/or defaults.

As the Bankruptcy Court summarized the events:

The Debtor asserted counterclaims against RFF in the arbitration, asserting that it was RFF that defrauded him and his co-borrowers.  The Debtor also denied that RFF has a perfected security interest in his player contract.  Before the arbitration could proceed further, the Debtor filed his bankruptcy petition.  Since then, RFF has continued to demonstrate its desire for one thing:  the Debtor’s multi-million dollar salary.  

*   *   *

But without seeking relief from the automatic stay or even informing the Debtor of its actions, RFF continued the arbitration proceeding under the pretense of asserting claims against parties related to the Debtor.  RFF ultimately obtained an arbitration award containing a finding that it has a perfected security interest in the Debtor’s player contract and other findings that would defeat the Debtor’s claims against RFF.  By obtaining these findings and a state court order confirming the arbitration award, RFF attempted to exercise control over the Debtor’s bankruptcy estate—both his salary and his counterclaims—to the detriment of the Debtor and his other creditors.  And RFF sought these findings intentionally and with full knowledge of the Debtor’s bankruptcy, in willful violation of the automatic stay. 

As noted above in the introductory description of this case, i) a bankruptcy case automatically stays “the commencement or continuation . . . of a judicial, administrative, or other action” against the debtor or his/her/its property; ii) an arbitration proceeding concerning the debtor or his/her/its property is stayed by a bankruptcy, and iii) “because the stay is automatic, ‘the debtor does not have to make any formal request that it be issued or that it apply to a particular proceeding.”

The Johnson court found that RFF’s state court actions were a “willful” violation of the bankruptcy stay and voided the arbitration award and subsequent state court confirmation of the award.  The Court also granted Johnson his attorneys fees related to RFF’s actions, and scheduled a hearing to determine whether punitive damages were also appropriate..

As one commentators put it after discussing the case:

Most bankruptcy practitioners when asked whether or not an act contemplated by a creditor might violate the automatic stay are likely to advise their clients, out of an abundance of prudence, that it may be safer to ask for permission than forgiveness.  RFF’s counsel did not do so.  As a result, RFF proceeded in a course that violated the automatic stay.  RFF was standing on thin ice when it proceeded to take the course of action to enforce its rights in the arbitration proceeding without the bankruptcy court granting relief from the stay.  It may be worthwhile, therefore, to seek permission rather than forgiveness when confronted with the automatic stay.

The full opinion:  In re John Joseph Louis Johnson, III, United States Bankruptcy Court for The Southern District of Ohio, Eastern Division at Columbus, Case No. 14-57104, April 28, 2016

Walter J. Greenhalgh, “Violation of the Automatic Stay Seeking to Enforce Arbitration Award Against Nondebtor:  Beware, You May Be on Thin Ice,” Duane Morris Alerts and Updates, May 13, 2016

Articles / e-Documents

Spoliation of Evidence and Sanctions 

As noted in prior issues of this newsletter, the Federal Rules of Civil Procedure were materially amended this past December, with substantive changes made to the discovery rules.  The case discussed herein, Cat3 v Black Lineage, is an opinion by Magistrate Judge James Francis, of the United States District Court for the Southern District of New York, and one of the first “new rules” cases to discuss spoliation of evidence and the imposition of sanctions under the new Rules.  As the Court itself stated in the preamble to its opinion, “[this] case raises significant issues concerning the reach of newly amended Rule 37(e) of the Federal Rules of Civil Procedure, the standard of proof governing spoliation, and the relief appropriate for destruction of electronically stored information (“ESI”).”

The cased arises out of claims by Cat3 that defendants infringed their trademarks, and are also guilty of “false designation of origin, unfair competition, and cybersquatting.”  During discovery, defendants learned of multiple versions of email documents produced by Cat3, and “contend that the plaintiffs altered certain emails relevant to the claims in this case before producing them in response to discovery demands.”  Plaintiffs argued that the differences in the emails were the result of either technical routing protocols on plaintiffs’ servers, or “occur[ed] when email is migrated from one system to a different type of system.”

The Court, after hearing the evidence, found that contrary to plaintiffs’ arguments, the “evidence supports the defendants’ allegation that the plaintiffs intentionally altered the emails at issue.”  The Court further found that there was “clear and convincing evidence. . . that the plaintiffs manipulated the emails here in order to gain an advantage in the litigation.”

Having made these findings, the Court considered its options under the new Rules.  As one commentator succinctly put it:

The court then considered what sanctions it could impose. First, the court considered whether the new Rule 37(e) even applied since the case had been pending since 2014 [before the new Rules went into effect]. Noting that the new Rule was to apply “insofar as just and practicable, [to] all proceedings then pending,” the court determined that “because the amendment [to Rule 37(e)] is in some respects more lenient as to the sanctions that can be imposed for violation of the preservation obligation, there is no inequity in applying it.” 

The court next examined whether the conduct alleged by defendants was sanctionable.  Plaintiffs argued that sanctions were not warranted because there was no missing or destroyed evidence, only “an evidentiary dispute as to which email address versions are more accurate.”  The court rejected this argument, reasoning that information had been lost because “the fact that there are near-duplicate emails showing different addresses casts doubt on the authenticity of both.”  Critically, however, the court went on to explain that even if Rule 37(e) was inapplicable because the information was not lost or destroyed, the court could “exercise inherent authority to remedy spoliation under the circumstances presented.”  The court reached this conclusion notwithstanding the fact that the Advisory Committee notes state that the new Rule “forecloses reliance on inherent authority or state law to determine when certain measures should be used.”  The court interpreted the Advisory Committee notes to mean only that it could not rely on inherent authority to impose sanctions expressly prohibited by the new Rule 37(e), such as dismissal of a case for merely negligent destruction of evidence.  However, the court held that it could still draw on its inherent authority to impose sanctions for bad faith spoliation “even if procedural rules exist which sanction the same conduct” as well as “where the conduct at issue is not covered by one of the other sanctioning provisions.” 

The court ultimately ordered that plaintiffs (1) be precluded from relying upon their version of the emails at issue to demonstrate notice to the defendants of use of the mark; and (2) bear the costs and reasonable attorneys’ fees incurred by the defendants in establishing the plaintiffs’ misconduct and in securing relief.  The court noted that this two-fold remedy was consistent with both subdivisions (e)(1) and (e)(2) of Rule 37 as well as the court’s inherent authority. 

Those readers who are practicing litigators will be well served to read the entire decision since in addition to the issues presented and discussed above, the Opinion addresses the standard of review to determine spoliation, the appropriateness of circumstantial evidence in determining what constitutes intentional spoliation, and appropriate remedies for spoliation.

Full Opinion:  Cat3, LLC et al v. Black Lineage, Inc. et al, 2014 cv 05511 – Document 92 (S.D.N.Y. 2016)

Kevin Broughel, James Worthington, Jeanette Kang & Jessica Montes, “The New Federal Rule of Civil Procedure 37(e): What Have The First Three Months Revealed?”, Paul Hastings Insights,  March 02, 2016

Articles / Interesting Case of the Month

China’s Anti-bribery Law’s Interpretations 

On April 18, 2016, China’s Supreme People’s Court and the Supreme People’s Procuratorate jointly issued an interpretation of several provisions of China’s anti-bribery law, clarifying the definition of a bribe to include “intangible benefits” – per one commentator, “benefits that you normally have to pay for.”  Also now clearly constituting a “bribe” is

“providing money or property to a government official after receiving the improper benefits. . . . This clarification follows previous misunderstandings that “thanking” an official after having received the benefit would be acceptable since the official was not induced to provide the benefit. A corrupt intent behind a payment or a gift of a property is, however, sufficient to constitute bribery. 

Also clarified is the monetary threshold for prosecution of bribery of a government official.  “Previously, a bribe with a value of RMB 5,000 (~US$ 760) was subject to prosecution, whereas now the bribe should have a value of at least RMB 30,000 (~US$ 4,500), subject to certain exceptions. The monetary threshold for prosecution of bribery not involving a governmental official has been set at RMB 60,000 (~US$ 9,000).  Penalties for differing amounts of bribes were also clarified, with the three categories of bribe amounts – “relatively large”, “huge”, or “especially huge” quantified.

An excellent summary of the Interpretations may be found on the website of the law firm Dentons.  Other law firms with significant Chinese practices have published summaries as well.

Todd Liao, Brian Soise, Judy Wang,  “China’s Supreme Court and Supreme Procuratorate Issue Interpretation on Bribery Laws,” Dentons Insights, May 18, 2016

Gaby Smeenk, Amanda Guo, Shuyu Huang and Roan Lamp, “China: Supreme Court Issues Judicial Interpretation On China’s New Anti-Bribery Law,” Mondaq, May 18, 2016

Privacy – Is Reading Someone’s Emails Like Entering Their Home?

While most Americans today consider the right to privacy to be a fundamental right guaranteed by the Constitution, what many who are not privacy scholars don’t know is that no such right is written in the Constitution, and nowhere in the original Constitution, the Bill of Rights, or the Constitution’s subsequent Amendments will the word “privacy” be found.  Why?  Because the concept of privacy simply did not exist at the time that the Constitution and Bill of Rights were written.

Privacy is a modern concept whose Constitutional underpinnings lie in and around the concepts of freedom expressed within the Constitution, Bill of Rights, 14^th, and other Amendments.  It is, as first stated by the famous jurist Louis Brandeis in a law review article in 1890, “the right to be left alone.”

Since that first expression in the closing decade of 19^th Century, the concept has morphed and evolved as society and cultural mores have changed.

“From data leaks to scandalous videos to the question of who gets to hack an iPhone, privacy issues have captured recent headlines. But what exactly does privacy mean in the digital age?

“There is no single definition of privacy,” says Klaus Weber, an associate professor of strategy at the Kellogg School. “The concept is more subjective and fluid than people might realize. And technology has made it incredibly difficult for regulators to pin it down.”

So begins a thought-provoking discussion of the concept of privacy and how lawmakers, regulators and jurists strive to define the term and concept by way of analogy:  “Is a chat room equivalent to a coffee shop, or is it more like a closed debate club?”

“Defining privacy in a changing society has always been a process of translation,” say the article’s author. “It’s an attempt to put the new or unfamiliar into familiar terms. Of course, these analogies aren’t value-neutral—there’s always a moral agenda at work, whether we realize it or not.”

[T]he evolution of privacy is the result of a dynamic process—one that exposes the moral underpinnings of our laws and institutions. [W]e have now entered a new phase—one with important implications for the meaning of privacy in a digital society. In this current phase, privacy is codified as “data protection” and, in the United States, viewed increasingly as a consumer—as opposed to human—right.”

*   *   *

[T]his is all the more reason to study how the concept of privacy is constructed in the digital age. “It’s important to know what we mean by privacy if our personal information is going to power the economy.”

The article is light and easy to read.  I commend it to all who are striving to understand and define the limits of this new, modern, in my view critically important, and rapidly evolving right.