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«JOURNAL OF LAW, ECONOMICS & POLICY VOLUME 10 SPRING 2014 NUMBER 2 EDITORIAL BOARD 2013-2014 Steve Dunn Editor-in-Chief Crystal Yi Meagan Dziura Sarah ...»

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164 RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 956–57 (8th ed. 2011) (discussing the overdeterrence of criminal investigations resulting from the exclusionary rule).

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are used to target enemy combatants. One recommendation is to prohibit law enforcement from arming drones.165 Drones have the ability to conduct remote precision strikes on suspects, but due process concerns and the dangers resulting from armed unmanned aircraft preclude the viability of this option within the United States. Therefore, domestic drones should be prohibited from carrying weapons of any kind.

Congress should enact rules to govern domestic drone use. One recommendation is that Congress should require the Department of Transportation to conduct a Privacy Impact Assessment of the operation of drones domestically.166 Pending legislation proposes amending the FAA Modernization and Reform Act of 2012 to address drone privacy concerns.167 With the proper focus on privacy concerns, drones may be deployed domestically while still protecting the privacy of American citizens.

In addition, Congress should require a warrant for “extended surveillance of a particular target.”168 As discussed earlier, the Fourth Amendment would not necessarily require a warrant in these situations. Even so, such a requirement extending warrant protections makes sense and will provide a valuable check against law enforcement abuse of the new technology.

Congress should require authorization from an independent official for generalized surveillance that collects personally identifiable information such as facial features and license plate numbers.169 This recommendation would apply to situations where a warrant was not required but personally identifiable information was still being gathered, such as surveillance at a public event. This recommendation should be enacted as a safeguard of the public’s privacy interests. To adequately protect privacy interests, Congress should direct that the independent official, vested with decisionmaking power on applications for general surveillance, be a neutral and detached magistrate who is completely separated from any law enforcement or intelligence agency.

As discussed in the previous section, legislation should be crafted to maximize the social utility from the domestic use of drones. The legislation should be structured according to the three levels of scrutiny proposed by Song to ensure that the governmental interest in the surveillance outweighs the disutility or social cost that will result from the loss of privacy.170 The neutral and detached magistrate discussed above could determine when a sufficient government interest exists to warrant allowing generalized drone surveillance.

165 Geiger, supra note 16.

166 Id.

167 H.R. 1262,113th Cong. (2013).

168 Id.

169 Id.

170 See Song, supra note 6, at 20.

2014] AN ECONOMIC PERSPECTIVE 461 Additional policy recommendations include an image retention restriction171 and a requirement to file a data collection statement to obtain a FAA license to operate a drone.172 These recommendations should be incorporated into the legislation. Congress should require a data collection statement with applications for a FAA license to operate a drone. A key element of the required data collection statement should address the retention of images and other data obtained.173 Such a restriction would mandate that all images and other sensory data gathered through surveillance be deleted unless the information serves a valid, legal purpose that requires retention.174 This restriction is necessary to prevent the government or any other entity from amassing an essentially limitless database of information on the activities of U.S. citizens without a valid and specified purpose.

Collectively, enacting these recommendations would prevent widespread, general drone surveillance while allowing drones to be utilized domestically when reasonably warranted to maintain security or protect the interests of American citizens. Therefore, these recommendations would adequately protect the privacy interests of American citizens while allowing law enforcement and other entities to utilize drones to protect our country and serve other worthwhile endeavors.

CONCLUSION

U.S. citizens want to be safe from terrorist attacks and other threats, but not at the expense of their privacy rights. Therefore, a delicate balance must be achieved between privacy and security interests. Drones represent a surveillance technology advancement that threatens to dramatically alter the balance between these interests. As discussed in this comment, the current legal framework does not adequately protect privacy from the widespread surveillance that will likely result from the unrestricted domestic use of drones. Therefore, prompt legislative action is necessary to address the fundamental privacy challenges presented by the use of drones. Such legislation should allow for constructive use of drones within a framework that contains restrictions to protect individual privacy rights. While widespread general surveillance could make the nation safer from crime and terrorism, such extensive surveillance will ultimately be inefficient. The surveillance that could result from the domestic use of drones would detract from individual privacy and cause individuals to reduce productive activities and invest in countermeasures. Such “privacy disutility” will outweigh the societal benefits unless domestic drone surveillance is restricted. Therefore, 171 AM. CIVIL LIBERTIES UNION, supra note 153, at 15.





172 Geiger, supra note 16.

173 Id.

174 Id.

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without legislative action we may soon live in a world where “every time we walk out of our front door we have to look up and wonder whether some invisible eye in the sky is monitoring us.”175 175 Catherine Herridge, Privacy concerns as US government rolls out domestic drone rules, FOXNEWS.COM (May 14, 2012), http://www.foxnews.com/politics/2012/05/14/privacy-concerns-as-usgovernment-rolls-out-domestic-drone-rules/print##ixzz20oLm15dB (quoting Jay Stanley, Senior Policy Analyst, American Civil Liberties Union).

2014] 463

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INTRODUCTION

When Charlotte Williams arrived home at 8:15 PM she found her husband, Charles Hagerman, unresponsive with injuries to his neck.1 Their two pit bulls, Scrappy and Scrappy’s son, stood nearby.2 As authorities investigated the scene, Mrs. Williams reportedly just sat and stared in shock saying, “The dog killed my husband.”3 Mrs. Williams’s son, Daryl, reported that his parents had raised their pit bull from when he was a puppy and had taken in Scrappy’s son only a year and a half before Daryl’s father was found mauled to death by the dogs.4 Daryl said the dogs were friendly with all members of the family including small children; however, he also said that Mr. Williams was prone to seizures, which may have frightened the dogs into attacking.5 It is these kinds of seemingly unprovoked attacks that leave the public angry and frightened when it comes to the dogs designated as pit bulls.6 However, pit bulls are not the only dog breed associated with unprovoked attacks.7 In fact, since 1975, dogs belonging to more than thirty breeds have been responsible for fatal attacks on humans.8 The boom in the population of the breeds and breed mixes that make up the category of pit bull,9 combined with the media’s portrayal of the breed as an aggressive * J.D. Candidate, George Mason University School of Law, 2014; B.A. English Literature, George Mason University, 2010. Thank you to fellow GMUSL students Kelly Fryberger and Alexandra Rhodes for listening to all of my thoughts and feelings on the subject of animal law. Thank you also to my fiancé, Brian O’Keeffe, for his many helpful edits and suggestions.

1 Maudlyne Iherjirika, Police: South Side man killed in pitbull attack at his home, CHICAGO SUN-TIMES (Aug. 15, 2012), http://www.suntimes.com/news/metro/14519676-418/police-south-sideman-killed-in-pitbull-attack.html.

2 Id.

3 Id.

4 Id.

5 Id.

6 Larry Cunningham, The Case Against Dog Breed Discrimination by Homeowners’ Insurance Companies, 11 CONN. INS. L.J. 1, 6 (2004–2005).

7 Jeffery J. Sacks et. al., Breeds of Dogs Involved in Fatal Human Attacks, 1979–1998, 217 J.

AM. VET. MED. ASS’N 836, 839 (2000).

8 Id.

9 http://www.petfinder.com/index.html (select type “dog” and enter “pit bull Terrier” in the breed box and restrict the search to within 100 miles of zip code 22201; do the same restrictions with “German Shepherd”). A simple search for “pit bull Terrier” on September 19, 2012 at 5:35pm on the pet adoption

84464 JOURNAL OF LAW, ECONOMICS & POLICY [VOL. 10:2

fighting machine,10 has contributed to a public outcry for legislation restricting or banning these types of dogs.11 There are two main approaches to solving the problem of dog attacks and fatalities by companion dogs.12 The first approach is Breed Specific Legislation, which regulates the sale, transport, or ownership of particular breeds of dogs under the auspices that these types of dogs are inherently dangerous.13 These regulations range from mandatory sterilization to an outright ownership ban.14 The second approach is the implementation of Dangerous Dog Laws that focus on restricting and regulating owners and their dogs after the individual dog has been deemed dangerous due to past behavior.15 This comment will provide an economic comparison of these two approaches, ultimately concluding that greater enforcement of current Dangerous Dog Laws combined with community education is the more efficient way to lessen the number of dog bites in the United States and prevent dog attacks. Part I presents the statistics of dog bites and dog attacks in the United States and discusses the unreliability of the most-often-quoted statistics. Part II provides a cost–benefit analysis of Breed Specific Legislation (BSL) and Dangerous Dog Laws (DDL). Part III provides a cost–benefit analysis of which approach is the best choice for communities and offers recommendations to decrease the instances of dog bites.

website “Petfinder” pulled up 1,322 dogs up for adoption compared to 289 dogs when searched for the term “German Shepherd.” See also Kristen E. Swann, Irrationality Unleashed: The Pitfalls of BreedSpecific Legislation, 78 U. MO. KAN. CITY L. REV. 839, 854 (2010) (discussing the town of Tijeras, N.M. where a number of attacks by pit bulls caused a public outcry which led to a breed ban, and how before the ban 25% of the households in Tijeras owned a pit bull).

10 Jamey Medlin, Pit Bull Bans and the Human Factors Affecting Canine Behavior, 56 DEPAUL L.

REV. 1285, 1302 (2007).

11 Karyn Grey, Breed-Specific Legislation Revisited: Canine Racism or the Answer to Florida’s Dog Control Problems?, 27 NOVA L. REV. 415, 418 (2003).

12 Safia Gray Hussain, Attacking the Dog Bite Epidemic: Why Breed Specific Legislation Won’t Solve the Dangerous Dog Dilemma, 74 FORDHAM L. REV. 2847, 2854 (2006).

13 Id.

14 Alabama Breed-specific Laws, DOGSBITE.ORG (July 31, 2012, 10:13 PM), http://www.dogsbite.org/legislating-dangerous-dogs-alabama.php (declaring pit bulls “inherently dangerous” in some counties and banning ownership outright in others); see also California Breed Specific Laws, DOGSBITE.ORG (July 31, 2012, 10:13 PM), http://www.dogsbite.org/legislating-dangerous-dogscalifornia.php (mandating that all pit bulls be sterilized in twelve counties).

15 Hussain, supra note 12, at 2854–62; see also Cynthia A. Mcneely & Sarah A Lindquist, Dangerous Dog Laws: Failing to Give Man’s Best Friend a Fair Shake at Justice, 3 J. ANIMAL L. 99, 112 (2007) (listing of the types of restrictions mandated to the owners of dogs that have been deemed dangerous).

2014] SHOULD WE BEWARE OF DOG OR BEWARE OF BREED? 465

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A. Dog Bite Statistics When a dog attacks a person, and more shockingly, when a dog kills a person, the public outcry is understandably strong.16 It is in the best interest of the public and the government to understand why these attacks happen, and which breeds cause the most bites—if this is in fact possible to determine. Many statistics attempt to quantify dog attacks and pinpoint which breeds cause the most attacks; however, there are many problems with the resulting statistics.17 It is hard for experts to come up with national statistics on dog bites and attacks because there is no national reporting system.18 Each locality has its own animal control or humane law enforcement and each operation has its own system. Even if each state was able to track all reported dog bites, there is no way to ensure that all dog bites would be reported. The following statistics attempted to remedy the discrepancy in reporting by relying on newspapers and other sources for dog bite numbers.

In 1997, the Center for Disease Control (CDC) conducted a study on dog bites, collecting data from the Humane Society of the United States and media reports concerning dog bite fatalities.19 Table 1 shows results of this study for a few specific years.20 16 Cunningham, supra note 6.

17 Id. at 17–27.

18 Id. at 30.

19 CTRS. FOR DISEASE CONTROL, Dog Bite Related Fatalities–United States, 1995–1996, in 46 MORBIDITY & MORTALITY WKLY. REP. 463 (1997).

20 Id.

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