News 2018: Q&A: Professor Shaun Spencer on the $560 Million Powerball Winner’s Request for Privacy

A Powerball winner has asked a New Hampshire judge to keep her identity private. The state argues that her name and address should be public under state law. UMass Law professor and privacy law scholar Shaun Spencer offers his perspective on the privacy issues that this case raises.

How did this case come about?

A longtime New Hampshire resident won the January 6 Powerball drawing. After reading instructions on the state lottery commission’s website, she signed the back of the ticket. She then consulted a lawyer and learned that a 2016 Powerball winner had claimed a $487 million jackpot anonymously, through a trust. The lottery commission denied her request to white out her signature and replace it with the trust. Under the name Jane Doe, the lottery winner asked a judge to declare that her name and address fall within the privacy exception to the state’s public records law. Her court filings described her desire for privacy based on numerous examples of prior lottery winners subjected to harassment, theft, and violence, even murder.

Why does the state say that Jane Doe doesn’t deserve privacy protection?

The state argued that Jane Doe has no substantial privacy interest in keeping her name and home address public because one’s name and address are often publicly shared and because Jane Doe placed her own identity at issue by playing the lottery. These arguments offer classic examples of a “binary” approach to privacy. Under this approach, sharing information with one part of the public is tantamount to sharing it with everyone in the public.

Shouldn’t “Jane Doe” have known when she bought her ticket that her name would be disclosed if she won the jackpot?

The lottery commission’s regulations specifically allow winners to claim prizes through a trust. Moreover, the lottery commission actually allowed a winner to claim through a trust just two years ago. These factors dispel the seemingly simple argument that Jane Doe should have known that she was exposing her name and address to the public simply by buying a ticket. However, even if the regulations banned claiming through a trust, the court should recognize that signing the winning ticket does not automatically deprive Jane Doe of any expectation of privacy.

The case involves an interpretation of New Hampshire’s public records law. Don’t public records laws serve important purposes?

They do, but they also recognize that there’s no bright line between what is private and what is public. Public records laws shed light upon the workings of government. The privacy exemption, however, recognizes that sharing information with the government does not automatically expose it to public scrutiny. Instead, to decide the scope of the exemption, the court balances the individual’s privacy interest against the public’s need to know. Thus, instead of a binary conception of privacy, the privacy exemption adopts a context-dependent conception in which privacy expectations vary with the circumstances.

The New Hampshire Supreme Court recognized the importance of context in a 2016 public records lawsuit brought by Planned Parenthood of Northern New Hampshire. New Hampshire Right to Life filed a public records request seeking license applications and other documents that Planned Parenthood of Northern New England had shared with the state. The state provided the documents but redacted a number of individual names. New Hampshire Right to Life sued to learn the names, but the New Hampshire Supreme Court held that the names were protected under the privacy exemption to the public records law. The court recognized that the individuals had a privacy interest because of the history of harassment and violence against abortion clinic workers. The court further recognized that learning the individuals’ names would offer little if any insight into the workings of government. Therefore, the individuals’ privacy interest significantly outweighed the public’s need to know their names.

As in the New Hampshire Right to Life case, the court should recognize Jane Doe’s significant privacy interest because of the history of harassment, crime, and violence faced by past mega-lottery winners. Moreover, the court should recognize that disclosing Jane Doe’s name to the public would not shed any light on the workings of the state lottery. Indeed, the lottery commission itself recognized this fact when it allowed a trust to claim a $498 million jackpot in 2016. If there the public has any sincere concerns about the lottery’s validity, the state can assuage those concerns by detailing their verification procedures without disclosing the winner’s name.

Not all lottery winners try to protect their identities. But for those who do, we ought to respect their desire for privacy rather than force them into the harsh public spotlight.

“The Powerball case highlights an important theme in privacy law: Should sharing information with someone require sharing that information with everyone?”