The battle between the US Senate and Backpage.com heated up again this week. Backpage demanded Wednesday that a federal appeals court continue blocking the online classified ad portal from having to comply with a Senate investigation and subpoena into how Backpage conducts its business, including providing the government with documents about the ins and outs of its editorial business model. The Permanent Subcommittee on Investigations contends that the site is littered with ads that amount to offering sex services by women and children forced into prostitution, and it wants to know what steps the website is taking, if any, to screen ads posted to its site by third parties.
“…this case is about nothing but editorial judgement,” attorneys for the site’s chief executive officer, Carl Ferrer, told (PDF) the US Court of Appeals for the District of Columbia Circuit on Wednesday.
The tug of war clearly implicates the site’s First Amendment rights, Backpage said. Backpage said the committee’s subpoena intrudes on its editorial judgement and that the government’s probe is “a limitless fishing expedition.” The government said it has a legitimate interest in cracking down on human exploitation, and it argued that the law provides the committee with subpoena power to investigate matters of public concern.
The government did on Friday, writing (PDF): “It is important for the Subcommittee’s investigation of Internet sex trafficking to understand what methods the leading online marketplace for sex advertisements employs to screen out illegal sex trafficking on its website. Mr. Ferrer has no First Amendment right to ignore a subpoena for documents about Backpage’s business practices related to that topic.”
Because of Ferrer’s refusal to comply, the Senate in March unanimously approved its first contempt resolution in more than 20 years. In addition to demanding to know how the site screens third-party ads, the subpoena is seeking documents pertaining to Backpage’s annual revenue, annual profits, and, among other things, records related to “Traffic directed to or from Adult Sections of Backpage’s US-based websites” and records “relating to processing of payment and fees associated with posting advertisements.”
A Senate investigation said it already found “substantial evidence that Backpage edits the content of some ads, including deleting words and images, before publication. The record indicates that in some cases, these deletions likely served to remove evidence of the illegality of the underlying transaction.”
One aspect of the Backpage subpoena is similar to the one Mississippi Attorney General Jim Hood had issued to Google about its piracy polices of screening third-party content. In July, however, Hood and Google settled their dispute.
The US Court of Appeals for the District of Columbia Circuit did not set any timelines on when it would rule on Backpage’s motion.
A chronicling of the Senate subcommittee’s dozens of investigations and reports can be found here (PDF).