March 16, 2016

S.Res.377 Backpage Civil Contempt Resolution

Noteworthy

Background: Backpage.com is a website for commercial sex advertising and has been linked to hundreds of child sex trafficking cases. On October 1, 2015, the Permanent Subcommittee on Investigations subpoenaed Backpage for information about its practices for reviewing, editing, and approving advertisements posted on the website. Backpage has refused to comply. On February 10, 2016, the Homeland Security and Governmental Affairs Committee voted unanimously to report S.Res. 377, a resolution directing the Senate legal counsel to bring a civil action to enforce the subpoena in federal court.

Floor Situation: The Senate may conduct a roll call vote on S.Res. 377 this week.

Executive Summary: S.Res. 377 directs the Senate legal counsel to bring a civil action to enforce a subpoena issued to Backpage.com CEO Carl Ferrer.

Overview of the Issue

The Permanent Subcommittee on Investigations has been conducting a bipartisan investigation into sex trafficking on the internet since April 2015. Backpage.com is a classified advertising website similar in look and layout to Craigslist.com. It is the market leader in commercial sex advertising and has been linked to hundreds of child sex trafficking cases. The National Center for Missing and Exploited Children testified before the subcommittee that the vast majority of the human trafficking tips it receives from the general public involve Backpage.

After subcommittee interviews with Backpage’s general counsel and requests for information failed to answer critical questions, the subcommittee issued a subpoena to Backpage on July 7, 2015. Backpage objected to the subpoena and failed to produce any documents in response. Following discussions with Backpage, the subcommittee withdrew the original subpoena and issued a new, more targeted subpoena on October 1, 2015. The subpoena requested documents concerning Backpage’s procedures for reviewing, editing, or modifying ads before publication; data retention practices; basic corporate structure; and revenue derived from adult advertisements. The subcommittee sought to assess what procedures Backpage uses to combat human trafficking, whether they are effective, and how they might be improved.

On October 23, 2015, Backpage submitted a response declining to comply with the subpoena, arguing that the subpoena violated the First Amendment and the requests were not pertinent to a proper legislative investigation. The subcommittee overruled these objections in a detailed letter sent to Carl Ferrer, the company CEO, on November 3, 2015, ordering him to comply.

The company responded with no more than 20 pages of documents responsive to the core of the subcommittee’s request on the review of commercial sex advertisements, while producing more than 16,000 pages of law-enforcement related documents of little utility to the subcommittee. Mr. Ferrer also failed to appear before the subcommittee at a November 19, 2015, hearing, as mandated by the subpoena, citing “important international business travel.”

S.Res. 377 directs the Senate legal counsel to bring a civil action to enforce the subpoena in federal court. The Homeland Security and Governmental Affairs Committee reported the resolution by a vote of 15-0 on February 10.

Considerations on the Bill

Congress’ investigative power and its power to compel compliance with investigations are firmly established. The Senate may enforce a subpoena independently through an inherent contempt action, through a criminal contempt certification to a U.S. attorney, or through civil enforcement under the Ethics in Government Act of 1978. S.Res. 377 takes the third approach, authorizing Senate legal counsel to bring a civil action in the District Court for the District of Columbia.

To be valid and enforceable in court, a congressional subpoena must have a legislative purpose, be within the authority of the committee or subcommittee, and be pertinent to the subject matter under investigation. The subcommittee’s subpoena satisfies all of these criteria.

  • The subcommittee’s investigation into how the internet is used to facilitate sex trafficking has a clear relationship to the Senate’s efforts to combat human trafficking. This includes the sale of minors for sexual services through online marketplaces.
  • The subcommittee’s authorizing resolution permits it to investigate all “aspects of crime” within the United States that affect the “national health, welfare, safety.” It is specifically tasked with examining “organized criminal activity” that uses “the facilities of interstate or international commerce.” Congress specifically established human trafficking as a predicate act under the Racketeer Influenced and Corrupt Organizations Act, and the internet is clearly a facility of interstate commerce.
  • Information on how the market leader in online commercial sex advertising may facilitate – or combat – illegal sex trafficking is pertinent to this investigation.

Backpage has raised First Amendment objections to the subcommittee’s subpoena. These objections are without merit. Where courts have found First Amendment concerns in other cases, the investigative demands were aimed at uncovering information about disfavored political dissenters, such as southern states seeking the identity of NAACP members and the House Un-American Activities Committee trying to discover the identity of a witness’ Communist associates. There is no similar danger here. The subpoena seeks information on Backpage’s advertisement review procedures and specifically directs the removal of personally identifying information.

Notable Bill Provisions

Directs the Senate legal counsel to bring a civil action to enforce a subpoena issued to Backpage.com CEO Carl Ferrer by the Permanent Subcommittee on Investigations.

Administration Position

The administration has not issued a Statement of Administration Policy at this time.

Cost

CBO has not issued a cost estimate at this time. Senate legal counsel will handle all litigation within its regular budget.

Amendments

There will not be amendment votes.