Last Friday, U.S. District Judge Rosemary M. Collyer ordered online “adult services” advertiser Backpage.com (“Backpage”) to produce documents responsive to a U.S. Senate subcommittee subpoena, rejecting Backpage’s arguments that the subpoena violated its First Amendment rights. The Senate Homeland Security Permanent Subcommittee on Investigations (the “Subcommittee”) has been investigating Backpage, and its connection to online sex trafficking, since early 2015, after convicted child sex traffickers repeatedly revealed they used Backpage’s anonymous, classified-style service to advertise their victims. Even though Backpage is aware that its website is used to facilitate child sex trafficking, not much is known about its internal practices to keep ads for child sex off its website. A part of the Subcommittee’s investigation focuses on these internal practices, and how Backpage monitors and reviews its ads.
Backpage has resisted cooperation during every step of the Subcommittee’s investigation. After refusing to substantively respond to a subpoena the Subcommittee issued last year, Backpage’s CEO Carl Ferrer also failed to appear for a hearing before the Subcommittee last November. In the meantime, the Subcommittee instead obtained documents from a third party company Backpage hired, from 2010-2012, to moderate the content of their ads. The documents revealed that Backpage directed moderators to edit the text of ads after they were posted, making them “compliant” with Backpage policies and concealing the underlying illegality of the transactions advertised.
In March, the full U.S. Senate voted unanimously to hold Ferrer in contempt for his failure to appear, and authorized the Subcommittee to enforce the subpoena in federal court. In court, Backpage has vehemently insisted that the Subcommittee’s investigation interferes with its First Amendment rights and is unduly broad, all while simultaneously publicly declaring it has “strict content policies to prevent illegal activity” and is a “critical ally” in the fight to end trafficking.
The CSE Institute applauds Judge Collyer’s ruling. It will be a critical step forward in shedding more light on Backpage’s involvement in the online sex industry. Backpage has thus far largely succeeded in keeping its review policies secret. Courts have almost universally dismissed civil lawsuits brought by child sex trafficking survivors against Backpage, finding a federal statute, the Communications Decency Act, prevents websites like Backpage from being liable for content created by their users. (For more on the CDA and why it should not be used to immunize trafficking facilitators like Backpage from civil liability, see the CSE Institute’s policy paper.) A lawsuit brought in Washington state court is the lone exception, after the Washington State Supreme Court held that the CDA would not protect Backpage if it “helps to develop” and “materially contributes to” illegal content. Civil discovery is currently underway in that case, and documents Backpage will have to turn over in court, as well as to the Senate Subcommittee, may finally show that it has more of a hand in facilitating online trafficking than it has publicly admitted. Stay tuned.