D.C. Judge Enforces Senate Subpoena For Backpage.com

CYBERSPACE—Online sites offering adult entertainment and employment have long been a target of censorship-minded religio-conservative groups—and of course, they have the ear (and attention) of the religio-conservative politicians that dominate both houses of Congress. So it shouldn't be surprising that the Senate Permanent Subcommittee on Investigations, part of the Senate Committee on Homeland Security and Governmental Affairs, has pressed Backpage.com, a site offering just such entertainment/employment, for documentation on how it figures out which ads offer illegal jobs or for-sale items, how it edits such ads to make them acceptable, and how it deals with user accounts about which they have received complaints. The D.C. federal court decision, by Judge Rosemary M. Collyer, stems from a civil contempt action filed by the subcommittee a little over four months ago—the first such action filed against anyone in more than 20 years—supposedly aiming "to determine how the company protects against or enables child sex traffickers to advertise on its pages," according to a story on Law360.com. In fact, Backpage CEO Carl Ferrer has already turned over thousands of pages of documents, about a third of which were already available in the public domain, but the subcommittee deemed the production insufficient. Ferrer has been fighting the subpoena, and later the contempt action, for more than a year, and according to Judge Collyer's Opinion and Order, issued last Friday, "On June 19, 2015, members of the Subcommittee staff interviewed Backpage’s general counsel, Elizabeth McDougall. They reported afterwards that Ms. McDougall could not or did not answer several critical questions concerning Backpage’s moderation activities, the statistics reflecting Backpage’s reporting of suspected sex trafficking to law enforcement and NCMEC, and Backpage’s corporate structure and ownership." Since then, the subcommittee and Ferrer have sparred over what information should be made available, with the Senate issuing various subpoenas narrowing the breadth of information it seeks, and Ferrer arguing that much of it is protected by his First Amendment press freedom rights. The information originally sought by the subcommittee, according to Judge Collyer's Opinion, included "(1) Backpage’s reviewing, blocking, deleting, editing, or modifying of advertisements in Adult Sections; (2) advertising posting limitations [a later iteration of the subpoena asked for a "Banned Terms List" and a "Grey List"]; (3) reviewing, verifying, blocking, deleting, disabling, or flagging user accounts; (4) human and sex trafficking, human smuggling, prostitution, or its facilitation or investigation, and policies, manuals, memoranda, and guidelines; (5) policies related to hashing of images in Adult sections, data retention, and removal of metadata; (6) number of ads posted, by category, for each month in the past three years and ads reported by Backpage to law enforcement agencies; (7) number of ads, by category, for the past three years that were deleted or blocked at each stage of the reviewing process; and (8) Backpage’s annual revenue and profit for each of the past five years by category." Clearly, some of that information—notably requests 4, 6 and 8—could be used to prosecute Backpage for aiding and abetting human trafficking, so it's no wonder that Ferrer objected to providing that material, noting in his argument against provision that "the subpoena intrudes into protected speech, seeks to single out and punish Backpage, and is overbroad and unduly burdensome" and that Mr. Ferrer has consistently argued that the actual purpose and intent of the Subcommittee’s inquiry is to condemn and punish Backpage. He cites statements made by Members of Congress and State officials criticizing Backpage as evidence of a larger governmental effort to target the company." [Emphasis added] Ferrer's First Amendment claims also include the argument that the subpoena "produces a chilling effect on speech." Judge Collyer rejected all of those arguments, claiming in part that Backpage hasn't conducted a thorough enough search to determine if there are materials that are responsive to the subpoena that don't implicate Ferrer's First and Fourth Amendment claims. "Mr. Ferrer has had ample time to perform the necessary duties of searching for, locating, identifying, and producing either responsive documents or a privilege log with an explanation for any withheld material," she wrote. "Having done none of the above, he is hard put to plead a barren First Amendment claim without underlying facts. Moreover, enforcement of the subpoena in the instant case does not impose a content-based restriction on any protected activity. The subpoena seeks documents relevant to, inter alia, Backpage’s moderation practices and policies... On this record, the Court finds that to the extent the Subpoena implicates Mr. Ferrer’s protected freedoms, it is only in an incidental and minimal fashion." Finally, Judge Collyer completely rejected the concept that the subcommittee is targeting Backpage as "part of a 'sustained, coordinated, and targeted campaign' that seeks to punish Backpage." "Thus, while some may have expressed dismay at Backpage’s adult ads and some States have attempted to legislate against it, the CDA continues to protect Backpage from liability as an Internet intermediary," the judge claims—though it will be interesting to see how she rules should the Senate subcommittee actually try to bring Backpage up on human trafficking charges. Backpage has ten days from the issuance of Judge Collyer's Order to turn over the "relevant documents," though Backpage may appeal the order to the D.C. Circuit Court of Appeals. At press time, First Amendment attorney Robert Corn-Revere, one of the attorneys representing Backpage, was not available for comment,