Senate Permanent Subcomm. v. Ferrer, Misc. Action No. 16-mc-621 (RMC)

• Decision Date: 05 August 2016
• Docket Number: Misc. Action No. 16-mc-621 (RMC)
• Citation: 199 F.Supp.3d 125
• Parties: SENATE PERMANENT SUBCOMMITTEE, on Investigations, Applicant, v. Carl FERRER, Respondent.
• Court: U.S. District Court — District of Columbia

199 F.Supp.3d 125

SENATE PERMANENT SUBCOMMITTEE, on Investigations, Applicant,

v.Carl FERRER, Respondent.

Misc. Action No. 16-mc-621 (RMC)

United States District Court, District of Columbia.

Signed August 5, 2016

Patricia M. Bryan, Morgan John Frankel, Thomas Edward Caballero, Office of Senate Legal Counsel, Washington, DC, for Applicant.

Stanley McKennett Brand, Steven R. Ross, Akin Gump Strauss Hauer & Feld LLP, Robert Corn-Revere, Davis Wright Tremaine LLP, Washington, DC, for Respondent.

OPINION

ROSEMARY M. COLLYER, United States District Judge

The Senate Permanent Subcommittee on Investigations applies to this Court for an order requiring Carl Ferrer, Chief Executive Officer of Backpage.com, LLC, an online website for classified ads, to produce certain documents in response to three requests of a subpoena issued on October 1, 2015. The subpoena is part of the Subcommittee's investigation into the use of the Internet for illegal sex trafficking. Mr. Ferrer refuses to comply fully with the October 1, 2015 subpoena. He has failed to conduct a full search for responsive materials and has not provided a privilege log to the Subcommittee.

On March 29, 2016, the Subcommittee filed its Application to enforce three document requests in the subpoena. Mr. Ferrer opposes. He argues that the Court lacks subject matter jurisdiction over the Application and that the subpoena falls outside the Subcommittee's jurisdiction. He also contends that the subpoena lacks a valid legislative purpose and is overly broad and unduly burdensome. Finally, he contends that the subpoena violates the First Amendment and the Due Process Clause of the Constitution. The Subcommittee replies that Mr. Ferrer's objections lack merit and that he has not articulated a valid legal basis for failing to comply. The matter is fully briefed and ripe for resolution.¹ For the reasons that follow, the Court will grant the Subcommittee's Application to Enforce Subpoena Duces Tecum .

I. FACTS

The Subcommittee on Permanent Investigations is the chief investigative subcommittee of the Committee on Homeland Security and Governmental Affairs, which is one of the standing committees of the Senate and was established in Rule XXV.1(k)(1) of the Standing Rules of the Senate and Senate Resolution 445, 108th Congress (2004), reprinted in S. Doc. 114-6, at 131-34 (2015). The Subcommittee, in turn, was established in Rule 7(A) of the Rules of Procedure of the Committee. See 161 Cong. Rec. S413 (daily ed. Jan. 22, 2015), reprinted in S. Doc. 114-6, at 131, 146 (2015).

Pursuant to the Senate's authorization, the Subcommittee is conducting an investigation into human trafficking, particularly sex trafficking, on the Internet. Sex trafficking is defined in federal law as the unlawful practice of selling the sexual services of minors or adults who have been coerced into participating in the commercial trade. See 18 U.S.C. § 1591. The Internet is an attractive medium for sex traffickers to advertise the exploited victims because it is inexpensive and easily accessible. According to the general counsel for the National Center for Missing and Exploited Children (NCMEC), "most child sex trafficking today is facilitated by online classified advertising websites." Statement of Yiota G. Souras, Sr. V.P. and Gen. Counsel for NCMEC, S. Hrg. No. 114–79, at 39.

The Subcommittee commenced its investigation into Internet sex trafficking in April 2015. Since then, the Subcommittee has conducted multiple interviews and briefings with various groups, particularly online commercial marketplaces, to learn more about the magnitude of the problem and the measures being taken to prevent sex trafficking. One of those interviewed as part of the investigation was Backpage. Backpage is "an online forum for classified ads" that self-identifies as "an online intermediary for speech of third-party users." Opp'n at 1. It is the "second largest classified advertising website in the U.S." and "users post millions of ads monthly in various categories, including real estate, buy/sell/trade, automotive, jobs, data and adult." Id. at 5. "Backpage does not dictate or require any content, though it may block and remove content that violates its rules or that may be improper." Id. at 5 n.2.

Backpage contains an "adult section," which "is subdivided into escorts, body rubs, strippers and strip clubs, dom[ination] and fetish, ts (transsexual escorts), male escorts, phone [sex], and adult jobs (jobs related to services offered in other adult categories, whether or not the jobs are sexual—not every employee of a brothel is a sex worker)." Backpage.com, LLC v. Dart , 807 F.3d 229, 230 (7th Cir.2015), petition for cert. filed (Apr. 28, 2016) (No. 15–1321). A "majority of the advertisements [in Backpage's adult section] are for sex—but a majority is not all, and not all advertisements for sex are advertisements for illegal sex." Id. at 234 (internal quotation marks omitted). Moreover, "[t]here is no estimate of how many ads in Backpage's adult section promote illegal activity." Id.

The Subcommittee states that "Backpage is a dominant presence in the online market for commercial sex and that numerous instances of child sex trafficking have occurred through its website." Mot. at 8 (citing PSI Staff Report at 6-7 (S. Hrg. No. 114–179, at 61-62)). As a result, the Subcommittee is interested in learning more about the effectiveness of Backpage's "moderation" procedures, that is, the practices of screening and reviewing advertisements to avoid posting illegal ads, such as ads for sex trafficking.

On April 15, 2015, the Subcommittee first contacted Backpage to request an interview. 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. See Letter to Carl Ferrer, CEO of Backpage.com, LLC from Chairman and Ranking Member of PSI, Nov. 3, 2015 [Dkt. 1–10] (Nov. 3, 2015 Ruling on Mr. Ferrer's Objections) at 2-3. On June 22, 2015, the Subcommittee sent Backpage follow-up questions and requests for information, which Backpage did not answer. See id .

On July 7, 2015, the Subcommittee issued a documentary subpoena to Backpage requesting materials concerning its moderation procedures, interaction with law enforcement, terms of use, data retention policies, and basic corporate structure. July 7, 2015 Subpoena [Dkt. 1–2]. While the subpoena sought information for 41 categories of documents, it did not request any materials concerning the identity of Backpage users. See id . On July 16, 2015, Backpage counsel met with Subcommittee staff to raise First Amendment concerns regarding the scope of the July 7 subpoena, as well as concerns regarding a possible connection between the subpoena and the efforts of Cook County, Illinois Sheriff Thomas Dart to close down Backpage. Opp'n, Decl. of Steven Ross at ¶ 4 [Dkt. 8–13] (Ross Decl.). On August 6, 2015, Backpage submitted written objections to the subpoena, asserting that it was overbroad, unduly burdensome, and violated the First Amendment. See Letter to Chairman and Ranking Member of PSI from Steven R. Ross, Esq., Aug. 6, 2015 [Dkt. 1–3] (Aug. 6, 2015 Letter). Backpage asked that the subpoena be withdrawn or a response to it to be deferred until Backpage could present "a more fulsome discussion of the constitutional infirmities and concerns regarding the Subcommittee's subpoena." Id. at 5.

On August 13, 2015, the Subcommittee began to issue deposition subpoenas to Backpage employees. Ross Decl. at ¶ 8. On August 26, the Subcommittee wrote to Backpage asking it to submit further legal authority in support of its First Amendment objection. See Letter to Steven R. Ross, Esq. from Chairman and Ranking Member of PSI, Aug. 26, 2015 [Dkt. 1–5] (Aug. 26, 2015 Letter to Backpage). The Subcommittee expressed its intention to minimize any resource burden and explained that "its objective is to conduct responsible fact-finding in aid of Congress' legislative and oversight responsibilities, not to single out Backpage." Id. Backpage counsel wrote back on the same day, reiterating his objections, opposing the subpoenas issued to two employees, and asking the Subcommittee to submit the dispute to federal court pursuant to 28 U.S.C. § 1365. See Letter to Chairman and Ranking Member of PSI from Steven R. Ross, Esq., Aug. 26, 2015 [Dkt. 8–17]. In both letters, that of August 6 and August 26, 2015, Backpage "asked that [the] subpoena be withdrawn or that, in the alternative, [they] discuss another way in which to proceed" that "fall[s] within the bounds of the Subcommittee's constitutional authority and [does] not infringe upon Backpage.com's constitutional rights." Id. at 5.

On August 28, 2015, the Subcommittee refused to withdraw the subpoenas issued to Backpage employees and rejected Backpage's objections. See Letter to Steven R. Ross, Esq. from Chairman and Ranking Member of PSI, Aug. 28, 2015 [Dkt. 8–18]. The Subcommittee again denied that its subpoena was part of a larger governmental effort targeting Backpage. See id . On September 14, 2015, counsel for both sides met to discuss the constitutional objections to the July 7 subpoena. At that meeting, Backpage was clear that it objected to the entire subpoena on First Amendment grounds because of its "breadth" and the "context" in which it was received—namely, "the fact that governmental actors have recently taken an interest in Backpage." Nov. 3, 2015 Ruling on Mr. Ferrer's Objections at 4-5. At the Subcommittee's exhortation, Backpage counsel agreed to provide in writing legal authorities in support of the company's First Amendment objection, but failed to do so. Id. at 5.

On October 1, 2015, the Subcommittee withdrew...