Does Winning the Lottery Require Losing Your Privacy?

By
Leah Plunkett
March 14, 2018

Leah Plunkett is an associate professor at University of New Hampshire School of Law and a fellow at the Berkman Klein Center for Internet & Society at Harvard University.


“Jane Doe” is a Granite Stater who won more than half a billion dollars — roughly 10 percent of the annual state budget — in a Powerball drawing in January. She didn’t want her identity released to the public by the New Hampshire Lottery Commission and asked a state court to keep that from happening.

This week, Judge Charles Temple of the state superior court ruled that the state must keep Ms. Doe’s name private, but allowed it to reveal her hometown. Protecting her name is the right decision. Revealing her hometown is the wrong one. (Temple is a former full-time faculty colleague of mine at University of New Hampshire School of Law, where I teach.)

By the Lottery Commission’s own admission, a winner’s actual personal information is not required to redeem the winning ticket. The lottery’s rules allowed Ms. Doe to create a trust to claim the funds and keep her identity private. One of Ms. Doe’s attorneys had previously set up this type of trust for another client. The problem was that she signed the back of her winning ticket with her real name and contact information, and so, according to the state, she forfeited the option to receive the money anonymously.

The nub of the case is whether the state should have let Ms. Doe do retroactively what the law allowed her to do from the outset: shield her identity.

Through her lawyer, she said that she did this due to “highly questionable” advice on the State Lottery Commission website, which prominently told winners to sign as she did and, she said, did not mention the trust option. The state said that the information was there. The state also said that, since she signed the ticket with her name and hometown, the state’s right-to-know law gave members of the public the right to know that information.

The nub of the case is whether the state should have let Ms. Doe do retroactively what the law allowed her to do from the outset: shield her identity. The case is also about a much bigger issue: how to properly balance the sometimes-competing state constitutional guarantees of individual privacy and the public’s right to know “what its ‘government is up to.’”  The judge came close to striking the right balance: he should have tipped the scales further toward privacy, to protect the name of Ms. Doe’s hometown as well.

The judge held that Ms. Doe has a “strong privacy interest in [the] non-disclosure of her name” that outweighs the public’s right to this information. He noted a series of harms that could come to Ms. Doe if her name were released: invasion of privacy, potential for threats, and disruption of her daily routine. The law firm representing her, the judge wrote, “has been bombarded with solicitations from various individuals seeking to capitalize on her winnings.”

But the judge said he could find no similar basis for withholding the name of her hometown. In his view, “any (female) person in Ms. Doe’s hometown could theoretically be the winner,” so it is “highly unlikely that Ms. Doe could be identified as the winner based solely on the disclosure of that limited piece of information.” That sounds more like wishful thinking than careful assessment of the consequences for Ms. Doe. The 2010 census counted about 13,000 adult women in her town. It will be a lot easier for enterprising journalists or nosy parkers to figure out who Ms. Doe is in that group than if they had to sleuth through the whole state.

The purpose of the right-to-know law in New Hampshire is to help preserve public oversight over government, not to gain unnecessary insight into people’s private lives.

New Hampshire is correct to want to hold itself accountable in running the lottery, a high-stakes governmental activity. As the New Hampshire attorney general, charged with defending the interests of the State Lottery Commission, said in court filings, New Hampshire citizens “rely on the lottery as an important funding source for State and local government,” including “over $1.8 billion [to date] to the State for funding of education.”

Releasing winners’ names and hometowns contributes to showing everyone that the lottery is played “on the level and that winners are bona fide lottery participants.” A real live person undoubtedly helps sustain the rags-to-riches story that makes people gamble in the lottery. And in New Hampshire, the right to know about governmental affairs is a personal right. A member of the public does not need to justify why she chooses to use it.

But is public knowledge of the name and hometown of the person who won the lottery important to the workings of our democracy? No, it is not. The purpose of the right-to-know law in New Hampshire is to help preserve public oversight over government, not to gain unnecessary insight into people’s private lives. If the right to know creeps too far toward the latter, it risks becoming a tool for surveillance. That ultimately undermines the public trust in government, which the right to know is designed to foster.

Last month, before ruling on the merits of the case, the judge let Ms. Doe’s lawyers establish for her the Good Karma Family Trust of 2018. The commission disbursed $264 million to the trust — her winnings after deducting taxes. Last week, through her lawyers, before she knew whether she would be allowed to try to keep her anonymity, Ms. Doe said that she plans to give away between $25 million and $50 million. The first $250,000, she said, will be divided among Girls Inc. and three chapters of a nonprofit called End 68 Hours of Hunger. There was a public outpouring of gratitude – and seemingly no public outcry to release Ms. Doe’s name. We are comfortable, it seems, knowing we can thank Good Karma.