Online data privacy has been in the spotlight for a variety of reasons over the past year, from Facebook’s privacy settings to government subpoenas for WikiLeaks data. Before Congress, regulators, and courts can give the issue legal clarity, they will need to answer some fundamental questions about which areas of law even apply.

A panel on data privacy earlier this week at the Consumer Electronics Show laid out the broad issues that need to be determined before any meaningful attempts at institutional reform can get underway. Central among them is the question of whether online privacy is a matter of personal property or of human rights.

Rep. Marsha Blackburn (R-Tenn.) kicked off the CES discussion, explaining that Congress is looking at regulating online consumer privacy, but that it first needs to figure out what exactly is meant by data privacy, what precisely it wants to regulate, and how to balance protection for consumers with protection for emerging commerce. Determining the latter two should be relatively easy—those are the questions inherent in any lawmaking process—but answering the first question could be a struggle.

ONLINE, WHAT CONSTITUTES A PERSON?

The crux of the issue is whether or not an online persona is an extension of a human being—as Marc Davis, a partner architect in Microsoft’s online services division, believes—or a mere collection of bits that can be bartered away for access to free e-mail or a social network. Davis sees the issue of data privacy as nothing less than defining what it means to be a person in a digital world.

Beyond the issues of storing and mining data, there are questions about who or what entities have the right to publish readily available public data about individuals and what it means to have digital identities that individuals might not even have created—and which will live on after they die.

Fred Carter, senior adviser to Ontario’s Office of the Information and Privacy Commissioner, boiled it down to how we characterize personal data. Whereas the U.S. government and U.S. citizens tend to view data as a property issue (i.e., we own our data and we’ll do with it what we please), the rest of the world views it as a human rights issue (i.e., there are defined limits to what Web companies can and cannot do with people’s data). That’s a big distinction: Although we can contract away property rights, basic human rights are not legally negotiable.

via Is Your Online Presence Property or Person? – BusinessWeek.