856 F.3d 1080 (D.C. Cir. 2017), 16-5232, Senate Permanent Subcommittee on Investigations v. Ferrer

Docket Nº:16-5232, 16-5274
Citation:856 F.3d 1080
Opinion Judge:TATEL, Circuit Judge :
Party Name:SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS, APPELLEE v. CARL FERRER, APPELLANT
Attorney:Robert Corn-Revere argued the cause for appellant. With him on the briefs were Ronald G. London, Robert D. Luskin, Stephen B. Kinnaird, Jamie S. Gardner, Steven R. Ross, and Stanley M. Brand. Jessica Ring Amunson and Joshua M. Parker were on the brief for amici curiae DKT Liberty Project, et al. ...
Judge Panel:Before: TATEL, SRINIVASAN and WILKINS, Circuit Judges.
Case Date:May 16, 2017
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1080

856 F.3d 1080 (D.C. Cir. 2017)

SENATE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS, APPELLEE

v.

CARL FERRER, APPELLANT

Nos. 16-5232, 16-5274

United States Court of Appeals, District of Columbia Circuit

May 16, 2017

Argued March 3, 2017

Appeals from the United States District Court for the District of Columbia. (No. 1:16-mc-00621).

Robert Corn-Revere argued the cause for appellant. With him on the briefs were Ronald G. London, Robert D. Luskin, Stephen B. Kinnaird, Jamie S. Gardner, Steven R. Ross, and Stanley M. Brand.

Jessica Ring Amunson and Joshua M. Parker were on the brief for amici curiae DKT Liberty Project, et al. in support of appellant.

Karen A. Chesley and David Boies were on the brief for amici curiae Legal Momentum, et al. in support of appellee.

Emma J. Llansó was on the brief for amici curiae Center for Democracy & Technology and Electronic Frontier Foundation in support of appellant.

Thomas E. Caballero, Assistant Counsel, Office of Senate Legal Counsel, argued the cause for appellee. With him on the brief were Patricia Mack Bryan, Senate Legal Counsel, Morgan J. Frankel, Deputy Senate Legal Counsel, and Grant R. Vinik, Assistant Senate Legal Counsel.

Before: TATEL, SRINIVASAN and WILKINS, Circuit Judges. OPINION filed by Circuit Judge TATEL.

OPINION

TATEL, Circuit Judge.

TATEL, Circuit Judge : Carl Ferrer, Chief Executive Officer of the online advertising website Backpage.com, appeals two district court orders directing him to produce various documents in response to a subpoena issued by the Senate Permanent Subcommittee on Investigations. During the pendency of this appeal, however, Ferrer turned over some of the documents, and the Subcommittee completed its investigation and issued its final report. Given this, and given that the Subcommittee no longer seeks to enforce the subpoena, it argues that the case has become moot. Ferrer responds that the case remains live because, according to him, this court can order the Subcommittee to return, destroy, or refrain from publishing the produced documents. We disagree. Because the relief Ferrer seeks is barred by the separation of powers, including the Speech or Debate Clause, the case is now moot.

I

.

In the first half of 2015, the Senate Permanent Subcommittee on Investigations began examining " businesses that directly or indirectly facilitate criminal sex trafficking conduct, including trafficking in minors." S. REP. NO. 114-214, at 6 (2016). The Subcommittee suspected that online advertisers were playing a central role in sex trafficking by " providing . . . easily accessible forum[s] that match[] buyers of sex with anonymous traffickers selling minors and adults." Id. at 3. In particular, the Subcommittee focused on Backpage.com, a large, classified-advertising website that allows third-party users to post their own ads. At that time, Backpage featured, alongside run-of-the-mill categories like real estate, jobs, and automobiles, a section dedicated to " adult" services, which contained subcategories ranging from " escorts" and " body rubs" to " adult jobs." Subpoena Duces Tecum of Oct. 1, 2015. Ads in those sections " typically consist[ed] of a headline, a photo or photos, video, and a brief description of the services being offered." S. REP. NO. 114-214, at 4.

In April 2015, the Subcommittee asked Backpage for an explanation of its " moderation" procedures, i.e., standards and policies Backpage says it uses to " screen, block and remove [user-supplied] ads . . . to guard against any form of human trafficking or child exploitation." Letter from Steven R. Ross, Counsel to Backpage.com to Sens. Portman and McCaskill (Oct. 23, 2015); see S. REP. NO. 114-214, at 7. Backpage sent its General Counsel to be interviewed by the Subcommittee, but when the Subcommittee found her answers lacking in several respects, it sent follow-up questions and requests for information, all of which went unanswered.

On July 7, 2015, the Subcommittee issued its first subpoena duces tecum asking Backpage to produce a variety of documents. Responding through counsel, the company argued that the subpoena was overbroad and a per se violation of the First Amendment. Although the Subcommittee offered to narrow the subpoena, Backpage continued insisting that the subpoena violated the First Amendment.

Seeking to end the stalemate, the Subcommittee withdrew the initial subpoena on October 1 and then issued a new one to Backpage's CEO, Appellant Carl Ferrer. The new subpoena sought eight categories of documents, giving Ferrer until October 23 to respond or " assert any claim of privilege or other right to withhold" documents in a privilege log. See Subpoena Duces Tecum of Oct. 1, 2015.

Although Ferrer supplied a handful of documents, he refused to search for any other responsive material. He gave three reasons for doing so: the subpoena exceeded the Subcommittee's investigative authority, infringed the First Amendment rights of Backpage and its users, and sought " [im]pertinent" information. Letter from Steven R. Ross to Sens. Portman and McCaskill (Oct. 23, 2015).

The Subcommittee rejected Ferrer's objections, but extended his deadline to comply until November 12. Ferrer produced several more documents, repeated his three objections, and added that he was withholding " [c]ertain documents . . . on the basis of attorney-client and/or attorney work product privilege." Letter from Steven R. Ross to Sens. Portman and McCaskill (Nov. 13, 2015).

Confronted with Ferrer's resistance, the Subcommittee sought authority from the Senate to bring a civil subpoena-enforcement action under 28 U.S.C. §...

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