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Supreme Court Won't Block Senate Subpoena Targeting Backpage.com

The U.S. Supreme Court on September 13 denied a request by Backpage.com's chief executive to block a congressional subpoena to produce business documents in a sex trafficking investigation.

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The U.S. Supreme Court on September 13 denied a request by Backpage.com’s chief executive to block a congressional subpoena to produce business documents in a sex trafficking investigation.

The High Court issued its decision in Ferrer v. Senate Permanent Subcommittee without comment. Justice Samuel Alito Jr. did not take part in the ruling.’

Lawyers for Backpage chief executive Carl Ferrer argued that the subpoena, issued by the Senate Committee on Homeland Security and Governmental Affairs’ permanent subcommittee on investigations, violated First Amendment rights. The subpoena compelled Backpage to provide details about, among other things, the company’s policies for adult advertisements and data retentions and how the company reviews or blocks user accounts. Backpage, the nation’s second largest online classified ad website, and Ferrer were represented by Davis Wright Tremaine and Akin Gump Strauss Hauer & Feld.

A federal judge in Washington earlier ruled against Ferrer, requiring him to respond to the Senate Permanent Subcommittee on Investigations. In the Aug. 5 decision, U.S. District Judge Rosemary Collyer rejected Ferrer’s argument that the Senate committee lacked the power to issue the subpoena.

However, Ferrer won an administrative stay from the D.C. Circuit on August 12 to temporary block the subpoena. In their petition for the stay, his defense lawyers framed the dispute as a fight over the First Amendment rights of companies such as Google and Facebook. “This case presents a novel First Amendment question of great significance: whether a Senate committee may use its investigative authority so as to intrude on the editorial processes of an online publisher of third-party content,” Ferrer’s lawyers wrote in their petition. See , http://bit.ly/2dp8BLV.

But on September 2, the D.C. Court of Appeals refused to stay enforcement of the subpoena. See, Senate Permanent Subcommittee v. Ferrer, No. 16-5232.

A lawyer for Ferrer, Robert Corn-Revere of Davis Wright Tremaine, had argued that Ferrer’s case was an example of a “disturbing” trend “of government actors issuing blunderbuss demands for documents to online publishers of content created by third parties (such as classified ads) in a manner that chills First Amendment rights.” The subpoena, Corn-Revere said, invaded “core editorial functions” that include how Backpage reviews, edits or deletes advertisements.

Senate legal counsel Patricia Bryan countered that Ferrer’s refusal to comply with the subpoena was based on “a novel and sweeping interpretation of the First Amendment.” The trial court noted that the information sought by the subpoena was “highly relevant” to the subcommittee’s investigation and potential legislation on Internet sex trafficking, Bryan noted in the Supreme Court.

Bryan said much of sex trafficking on the Internet takes place on Backpage’s online commercial marketplace. “Given Backpage’s prominent position in the online sex marketplace, the subcommittee has sought to learn about the business practices Backpage employs to protect against the use of its website by sex traffickers,” Bryan told the High Court.


Marcia Coyle writes for The National Law Journal , an ALM sibling of Internet Law & Strategy. She can be reached at mcoyle@alm.com and on Twitter @MarciaCoyle. C. Ryan Barber contributed to this report.

The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.

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