Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information

Abstract

In late September of 1999 two committees of the House of Representatives reported to the House two radically different bills for protecting database providers. One bill, H.R. 354, is unconstitutional. The other, H.R. 1858, probably is constitutional. The paper analyzes the differences between the two bills as a test case for the constitutional bounds within which Congress is empowered to regulate the production and exchange of information by creating private rights. It suggests that the intellectual property clause and the first amendment create two layers of judicial review over such acts of Congress, which rely on judges to protect the public domain from political processes where its value to future generations and to users is systematically underrepresented.