D.C. Circuit Stays Out of Backpage.com Fight with Congress

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By Michaela Ross

A federal appeals court May 16 declined to tell federal lawmakers how to dispose of documents turned over by Backpage.com LLC CEO Carl Ferrer in a Senate investigation into sex trafficking.

The U.S. Court of Appeals for the District of Columbia Circuit rejected Ferrer’s argument that it could order a Senate subcommittee to return or destroy documents about how Backpage moderates its site that Ferrer produced during the subcommittee’s investigation of the company.

Judge David Tatel, citing the Constitution’s speech or debate clause, said in the court’s opinion that it wouldn’t step in.

Tatel wrote that the clause, which shields members of Congress from prosecution related to their legislative duties, affords lawmakers a “cloak of protection.” He pointed to an earlier case in which the court held that Congress has a “privilege to use materials in its possession without judicial interference.”

Ferrer’s appeal of a subpoena for documents issued by the Senate Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations is moot, Tatel said in the court’s opinion. The court rejected Ferrer’s argument that the case was still live, saying the subcommittee has completed its investigation and no longer seeks to enforce the subpoena ( Senate Permanent Subcommittee v. Ferrer , D.C. Cir. App., No. 16-5232, 5/16/17 ).

The subcommittee’s Jan. 9 report said that Backpage knowingly concealed illegal sex trafficking ads by systematically deleting incriminating terms before publishing them to the site. Ohio Republican Sen. Rob Portman and Missouri Democratic Sen. Claire McCaskill, the subcommittee’s chairman and ranking member, respectively, said after the report came out that small changes are needed to Section 230 of the Communications Decency Act, the federal law that shields online publishers from liability for third-party content.

In his opinion, Tatel responded to Ferrer’s comments that Portman and McCaskill have said they will continue to combat sex trafficking on Backpage.com or other sites and will more broadly examine communications laws.

Such statements “hardly establish a ‘reasonable expectation’ that the Subcommittee, having completed its work and issued its final report, will nonetheless reopen its investigation and again issue a subpoena to Ferrer,” Tatel wrote.

Backpage.com, which allows third-party users to post their own ads for a variety of categories such as real estate and jobs, removed its adult services ads hours after the subcommittee’s report was issued. A Jan. 9 press release from the company said it shut down the adult category due to “unconstitutional government censorship.”

Ferrar still faces criminal pimping and money laundering charges in the California Superior Court. He was released on bail after an April 28 arraignment hearing in the case.

Robert Corn-Revere, an attorney for Backpage and a partner at Davis Wright Tremaine LLP in Washington, did not immediately respond to a request for comment.

To contact the reporter on this story: Michaela Ross in Washington at mross@bna.com

To contact the editor responsible for this story: Keith Perine at kperine@bna.com

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