Senate Permanent Subcommittee on Investigations v. Ferrer , 199 F. Supp. 3d 125 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
SENATE PERMANENT SUBCOMMITTEE, )
ON INVESTIGATIONS, )
)
Applicant, )
)
v. ) Misc. Action No. 16-mc-621 (RMC)
)
CARL FERRER, )
)
Respondent. )
)
OPINION
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
1
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.
1
The parties have filed the following briefs on this matter: Application to Enforce Subpoena
[Dkt. 1] (Mot.); Opp’n [Dkt. 8]; Reply [Dkt. 11]; Surreply [Dkt. 15]; and Response to Surreply
[Dkt. 16].
2
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
3
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
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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
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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 the July 7 subpoena and issued
a new subpoena to Mr. Ferrer, part of which is before the Court. The new subpoena requested
eight categories of documents and focused on the core of the Subcommittee’s investigation of
Internet sex trafficking. In an accompanying letter, the Subcommittee reiterated its rejection of
Backpage’s objections as meritless and said that, “in the hope of overcoming the current
impasse,” it was “seeking a narrower subset of documents.” Letter and Subpoena to Carl Ferrer
from Chairman and Ranking Member of PSI, Oct. 1, 2015 [Ex. 1-7] at 2 (Oct. 1, 2015 Letter and
Subpoena). The Subpoena instructed Mr. Ferrer to produce responsive documents, or else to
appear personally, on October 23, 2015. The eight categories of documents requested by the
October 1, 2015 in the Subpoena concerned: (1) Backpage’s reviewing, blocking, deleting,
editing, or modifying of advertisements in Adult Sections; (2) advertising posting limitations; (3)
reviewing, verifying, blocking, deleting, disabling, or flagging user accounts; (4) human and sex
trafficking, human smuggling, prostitution, or its facilitation or investigation, and policies,
manuals, memoranda, and guidelines; (5) policies related to hashing of images in Adult sections,
data retention, and removal of metadata; (6) number of ads posted, by category, for each month
in the past three years and ads reported by Backpage to law enforcement agencies; (7) number of
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ads, by category, for the past three years that were deleted or blocked at each stage of the
reviewing process; and (8) Backpage’s annual revenue and profit for each of the past five years
by category. See id. The subpoena stated that information responsive to categories 6, 7, and 8
could be submitted with numbers and without underlying documentation.
The subpoena did not seek any information concerning Backpage users and the
Letter directed that such information be redacted. The Letter also directed Mr. Ferrer to “assert
any claim of privilege or other right to withhold documents from the Subcommittee by October
23, 2015, the return date of the subpoena, along with a complete explanation of the basis of the
privilege or other right to withhold documents” in a privilege log. Id. at 3.
Thereafter, Mr. Ferrer only “produced a limited number of publicly available
documents in response to requests 1, 2, and 3 in the subpoena but objected to producing any
other documents.” Mot. at 12. Mr. Ferrer also indicated that “Backpage would compile certain
records . . . responsive to request 4 of the subpoena, and would investigate and seek to compile
statistical information responsive to requests 6 and 7 . . . .” Id. at 12-13 n.10. No production was
made as to requests 5 or 8. Mr. Ferrer objected to the subpoena because it: (1) exceeded the
Subcommittee’s investigative authority; (2) infringed on First Amendment rights; and (3) did not
seek information pertinent to the investigation. Letter to Chairman and Ranking Member of PSI
from Steven R. Ross, Esq., Oct. 23, 2015 [Dkt. 1-9] (October 23, 2015 Letter).
On November 3, 2015, the Subcommittee issued a comprehensive ruling
overruling Mr. Ferrer’s objections to the subpoena. It ordered Mr. Ferrer to produce responsive
documents by November 12, 2015 and to appear personally at a hearing on November 19, 2015.
On November 13, one day after the production deadline, Backpage produced over 16,800 pages
of documents, most of which were responsive to request 4; 16,300 of those pages involved
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Backpage’s responses to law enforcement subpoenas, “each response containing numerous
repetitive pages of advertisements and photos . . . relating to a single Backpage user.” Mot. at 14
n.11. Backpage intended to “prepar[e] millions more pages of documents” responsive to request
4, see Opp’n at 15 n.12 (citing Ross Decl. at ¶ 7), but the Subcommittee instructed Backpage to
suspend the production of documents responsive to request 4 because it did not need more
documents of that nature. See E-mail to Steven R. Ross, Esq. from Chief Counsel of PSI, Nov.
14, 2015 [Dkt. 8-23] (“Finally, as we discussed, please hold off on processing or producing what
you described as more than five million pages of law enforcement subpoena related material.”)
(emphasis added). Backpage erroneously interpreted this communication, limited in its focus, as
a direction to cease submitting any documents or responses. See id. (stating that the
Subcommittee “instructed Backpage to cease producing documents”); see also Letter to
Chairman and Ranking Member of PSI from Steven R. Ross, Esq., Nov. 18, 2015 [Dkt. 1-14] at
2. There is simply no support in the record for the proposition that the Subcommittee “declined
to receive, []or instructed Mr. Ferrer or Backpage not to produce, any materials responsive to
requests 1, 2, and 3.” Reply at 4 n.3.
In a November 16, 2015 letter responding to various follow-up inquiries,
Backpage counsel told the Subcommittee that “the company’s submissions of information and
documents to date [did not] constitute either the fruits of a complete search of every bit of data
possessed by Backpage.com or by all of its employees over the full (nearly six year) time period
covered by the Subpoena.” Letter to Chairman and Ranking Member of PSI from Steven R.
Ross, Esq., Nov. 16, 2015 [Dkt. 1-13] (Nov. 16, 2015 Letter) at 2. Backpage asserted that such a
full and complete search would be by itself unconstitutional due to the Subpoena’s “overbreadth
and First Amendment infirmities.” Id. Backpage never explained the extent or nature of its
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limited search, did not provide a privilege log, did not object to the production of specified
documents, and did not identify any documents being withheld.
Backpage counsel asked that Mr. Ferrer’s personal appearance at the November
19 hearing be waived because Mr. Ferrer would not answer any questions as he intended to
assert his Fifth Amended privilege against self-incrimination and invoke his First Amendment
rights. See id.; Letter to Chairman and Ranking Member of PSI from Steven R. Ross, Esq., Nov.
16, 2015 [Dkt. 1-14] at 1-2. Counsel added that Mr. Ferrer was on international business travel.
The Subcommittee rejected Backpage’s last minute effort to excuse Mr. Ferrer’s appearance.
Nonetheless, Mr. Ferrer did not appear before the Subcommittee on November 19, 2015. During
that hearing, the Subcommittee received the testimony on Internet sex trafficking from four
witnesses, three law enforcement officials, and NCMEC’s general counsel. On the same day, the
Subcommittee also issued a Staff Report, which was titled, “Recommendation to Enforce
Subpoena Issued to the CEO of Backpage.com, LLC, Staff Report to the Permanent
Subcommittee on Investigations” (PSI Staff Report).
On February 29, 2016, the Subcommittee presented a resolution to the Senate
Committee on Homeland Security and Governmental Affairs authorizing and directing the
Senate Legal Counsel to bring a civil action under 28 U.S.C. § 1365 to enforce the first three
requests of the October 1, 2015 subpoena. See S. Rep. No. 114-214 (2016). On March 17, 2016,
the Senate adopted said resolution by a vote of 96-0. See 162 Cong. Rec. S1561 (daily ed. Mar.
17, 2016). The Subcommittee asks the Court to enforce the following parts of the subpoena:
1. Any documents concerning Backpage’s reviewing, blocking,
deleting, editing, or modifying advertisements in Adult
Sections, either by Backpage personnel or by automated
software processes, including but not limited to policies,
manuals, memoranda, and guidelines.
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2. Any documents concerning advertising posting limitations,
including but not limited to the “Banned Terms List,” the “Grey
List,” and error messages, prompts, or other messages conveyed
to users during the advertisement drafting or creation process.
3. Any documents concerning reviewing, verifying, blocking,
deleting, disabling, or flagging user accounts or user account
information, including but not limited to the verification of
name, age, phone number, payment information, email address,
photo, and IP address. This request does not include the
personally identifying information of any Backpage user or
account holder.
Oct. 1, 2015 Letter and Subpoena (emphasis in original). The Subcommittee points out that
Backpage has only produced a total of 65 pages of documents responsive to these requests ––
“21 pages of which were publicly available documents: the website’s Terms of Use, Posting
Rules, and User Agreement, and testimony by Backpage’s general counsel before the New York
City Council in 2012.” Mot. at 14 n.12 (citing October 23, 2015 Letter at 6-7; PSI Staff Report
at 30-31 (S. Hrg. No. 114-179, at 85-86)). As a result, the Subcommittee filed the instant
Application under 28 U.S.C. § 1365 to enforce its subpoena.
II. ANALYSIS
The Subcommittee moves to enforce the first three requests of its October 1, 2015
subpoena. Mr. Ferrer opposes the Subcommittee’s Application on four different grounds:
(1) lack of subject matter jurisdiction; (2) lack of a valid legislative purpose that falls within the
scope of the Subcommittee’s authority; (3) violation of the First Amendment because the
subpoena intrudes into protected speech, seeks to single out and punish Backpage, and is
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overbroad and unduly burdensome; and (4) violation of the Due Process Clause.2 For the
reasons that follow, the Court finds Mr. Ferrer’s objections to be without merit. The Court will
address each argument in turn.
A. Subject Matter Jurisdiction over the Subcommittee’s Application
The Subcommittee filed the instant civil action to enforce its subpoena pursuant to
28 U.S.C. § 1365. The statute provides in relevant part:
(a) The United States District Court for the District of Columbia
shall have original jurisdiction, without regard to the amount
in controversy, over any civil action brought by the Senate
or any authorized committee or subcommittee of the Senate
to enforce, to secure a declaratory judgment concerning the
validity of, or to prevent a threatened refusal or failure to
comply with, any subpena or order issued by the Senate or
committee or subcommittee of the Senate to . . . any natural
person to secure the production of documents or other
materials of any kind or the answering of any deposition or
interrogatory or to secure testimony or any combination
thereof.
(b) Upon application by the Senate or any authorized committee
or subcommittee of the Senate, the district court shall issue
an order to an entity or person refusing, or failing to comply
with, or threatening to refuse or not to comply with, a
subpena or order of the Senate or committee or
subcommittee of the Senate requiring such entity or person
to comply forthwith . . . Nothing in this section shall confer
upon such court jurisdiction to affect by injunction or
otherwise the issuance or effect of any subpena or order of
the Senate or any committee or subcommittee of the Senate
or to review, modify, suspend, terminate, or set aside any
such subpena or order.
2
With the exception of the first and last argument, the Subcommittee considered and rejected
Mr. Ferrer’s objections.
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28 U.S.C. § 1365(a), (b). The statute strips this Court of its customary authority to modify or
quash a subpoena. It allows the Court only to decide whether to enforce the subpoena brought
before it.
Mr. Ferrer argues that because the Subcommittee is seeking enforcement of three
of the eight requests in the October 1, 2015 subpoena, it is seeking relief outside the Court’s
jurisdiction. In essence, he contends that enforcement of a subpoena in part is not available
under the statute so that the Court has no authority and the Application must be denied. See
Opp’n at 45 (“Because the Subcommittee has sought enforcement of the Subpoena in a manner
–– following modification –– which is expressly forbidden under § 1365, such enforcement is
not warranted and should not be granted.”). The Court disagrees. By its plain terms, the statute
imposes no constraint on the Subcommittee’s authority to seek partial enforcement of a subpoena
or order. 28 U.S.C. § 1365(b).
Mr. Ferrer’s argument also ignores the very purpose of the statute, which was to
avoid judicial interference with Congress’s exercise of its constitutional powers. See S. Rep. No.
95-170, at 94 (1977). The statute’s legislative history makes clear that “the court’s jurisdiction is
limited to the matter Congress brings before it, that is whether or not to aid Congress is
enforcing the subpoena or order.” Id. (emphasis added). It is the Senate’s constitutional
prerogative to decide what to bring before the Court. See Senate Select Committee on Ethics v.
Packwood, 845 F. Supp. 17 (D.D.C.), stay denied, 510 U.S. 1319 (1994) (Rehnquist, C.J., in
chambers) (enforcing a narrower documentary subpoena under § 1365). As the Subcommittee
correctly states, “By granting the Application, the Court would not be modifying the subpoena in
any way, but merely enforcing the parts of the subpoena brought before it.” Mot. at 23
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(emphasis in original). Accordingly, the Subcommittee’s relief is permitted by the statute and
the Court has subject matter jurisdiction.
B. The Subcommittee’s Authority and the Subpoena’s Legislative Purpose
“The power of the Congress to conduct investigations is inherent in the legislative
process,” see Watkins v. United States, 354 U.S. 178, 187 (1957), and the capacity to enforce
said investigatory power “is an essential and appropriate auxiliary to the legislative function,”
see McGrain v. Daugherty, 273 U.S. 135, 174 (1927). “Absent such a power, a legislative body
could not ‘wisely or effectively’ evaluate those conditions ‘which the legislation is intended to
affect or change.’” Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 305 (D.D.C. 1976), aff’d, 548
F.2d 977 (D.C. Cir. 1976) (quoting McGrain, 273 U.S. at 175).
Mr. Ferrer raises a plethora of arguments objecting to the Subcommittee’s actions,
none of which is persuasive. Mr. Ferrer argues that the subpoena lacks a legislative purpose and
does not seek information that is pertinent to an investigation within the Subcommittee’s
jurisdiction or power. A cursory review of the Subcommittee’s investigatory authority and
actions in this instance demonstrate that these objections are just wrong. The Subcommittee is
authorized to study or investigate, inter alia: (1) organized criminal activity in interstate or
international commerce; (2) the adequacy and need to change Federal Laws targeting organized
crime in interstate or international commerce to protect the public; (3) “all other aspects of crime
and lawlessness within the United States which have an impact upon or affect the national health,
welfare, and safety”; and (4) “the efficiency and economy of all branches and functions of
Government with particular references to the operations and management of Federal regulatory
policies and programs.” S. Res. 73, 114th Cong., § 12(e)(1) (2015), reprinted in S. Doc. No.
114-6, at 137 (2015). Senate Resolution 73 also authorizes the Subcommittee “to require by
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subpoena or otherwise the attendance of witnesses and production of correspondence, books,
papers, and documents.” Id. § 12(e)(3).
Undoubtedly, the use of the Internet for human and sex trafficking, as defined by
statute, involves organized criminal activity in interstate or international commerce and can
affect the national health, welfare, and safety. See, e.g., 18 U.S.C. §§ 1581-1592 (recognizing
different forms of human trafficking –– i.e., slavery, forced labor, involuntary servitude, and sex
trafficking of minors –– as federal crimes); 18 U.S.C. § 1961(1) (defining “racketeering activity”
under the Racketeer Influenced and Corrupt Organizations Act to include “any act which is
indictable under” 18 U.S.C. §§ 1581-1592). The Subcommittee is also authorized to evaluate the
effectiveness of existing statutes, programs, and regulatory initiatives addressing the problem of
sex trafficking. This can be done, in part, by examining the magnitude of sex trafficking on the
Internet. Finally, the power to issue documentary subpoenas is inherent in the Subcommittee’s
investigatory authority. See S. Res. 73, § 12(e)(3).
Mr. Ferrer responds in conclusory terms that the subpoena “cannot be enforced
based [on] an unlimited legislative mandate, simply because Congress is empowered to legislate
about anything involving either organized crime or the Internet.” Opp’n at 32. This generalized
statement offers no basis to limit the Subcommittee’s authority to issue the subpoena here. The
Constitution authorizes Congress to investigate any issue or subject about which it can enact
legislation to the extent that it “would be materially aided by the information which the
investigation was calculated to elicit.” McGrain, 273 U.S. at 177; see also U.S. Const. art. I, § 8.
The Senate granted broad investigatory powers to the Subcommittee, which would include
looking into Internet sex trafficking. See Barenblatt v. United States, 360 U.S. 109, 111 (1959)
(stating that “the scope of [Congress’s] power of inquiry . . . is as penetrating and far-reaching as
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the potential power to enact and appropriate under the Constitution”).3 It is noteworthy that 96
Senators voted to enforce the subpoena, indicating strong agreement with the Subcommittee’s
authority.
Further, Congress has already demonstrated its interest in this area. One example
of such interest in Internet protections is found in the Communications Decency Act (CDA), 47
U.S.C. § 230, which provides a safe harbor for website owners or service providers to self-
monitor. Specifically, this safe harbor provision establishes “broad federal immunity to any
cause of action that would make service providers liable for information originating with a third-
party user of the service.” Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006)
(internal quotation marks and citations omitted). Courts have held that section 230 of the CDA
preempts state statutes prohibiting the use of online marketplaces for advertising the sexual
abuse of minors.4
3
The Subcommittee notes that it has conducted numerous investigations into the use of the
Internet to engage in criminal activity, such as identity and securities fraud. See, e.g., Phony
Identification and Credentials Via the Internet: Hearing Before the Permanent Subcomm. on
Investigations of the Senate Comm. on Governmental Affairs, S. Rep. No. 107-133, 107th Cong.
(2002); Securities Fraud on the Internet: Hearing Before the Permanent Subcomm. on
Investigations of the Senate Comm. on Governmental Affairs, S. Hrg. No. 106-137, 106th Cong.
(1999); Fraud on the Internet: Scams Affecting Consumers: Hearing Before the Permanent
Subcomm. on Investigations of the Senate Comm. on Governmental Affairs, S. Hrg. No. 105-453,
105th Cong. (1998). Mr. Ferrer does not address the validity of these investigations pursuant to
Senate Resolution 73.
4
Backpage has invoked successfully this provision to avoid liability. See, e.g., Doe ex rel. Roe
v. Backpage.com, LLC, 104 F. Supp. 3d 149 (D. Mass. 2015), aff’d, 817 F.3d 12 (1st Cir. Mar.
14, 2016); Backpage.com, LLC v. Hoffman, No. 13-cv-3952, 2013 WL 4502097 (D.N.J. Aug. 20,
2013), appeal dismissed, No. 13-3850 (3d Cir. May 1, 2014); Backpage.com, LLC v. Cooper,
939 F. Supp. 2d 805 (M.D. Tenn. 2013); Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262
(W.D. Wash. 2012).
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The First Circuit recently agreed that “aided by the amici, the appellants have
made a persuasive case” showing that “Backpage has tailored its website to make sex trafficking
easier.” Doe v. Backpage.com, LLC, 817 F.3d 12, 29 (1st Cir. 2016). The Circuit added that,
since Congress “chose to grant broad protections to internet publishers” in the CDA, “the
remedy” to the evils identified by appellants and amici “is through legislation, not through
litigation.” Id. Given the relevance of section 230 of the CDA and its focus on self-monitoring,
the Subcommittee is legitimately interested in investigating the nature and extent of Backpage’s
moderation procedures, as well as evaluating the measures taken by other service providers to
prevent their websites from becoming sex trafficking havens.
Mr. Ferrer retorts that the Subcommittee cannot rely on Section 230 because it
was “mentioned nowhere in the Subcommittee’s authorizing resolution, it is not addressed in the
Subpoena or its cover letter, and was never broached in the voluminous correspondence between
Backpage and the Subcommittee staff.” Opp’n at 33. He argues that “the Subcommittee cannot
retroactively articulate its purpose through lawyers’ arguments made to this Court.” Id. Of
course, forced to sue, the Subcommittee can present proof of its own authority howsoever it
chooses. The Supreme Court has stated that it is not necessary for a Senate resolution
authorizing an investigative committee to “declare in advance what the [S]enate meditated doing
when the investigation was concluded.” In re Chapman, 166 U.S. 661, 670 (1897). Since Mr.
Ferrer was always fully aware of the topic under inquiry, namely, the measures taken by Internet
companies to monitor their sites for Internet sex trafficking, his objections must fail.
Moreover, the record belies his assertion. In its November 3, 2015 Ruling on Mr.
Ferrer’s objections, the Subcommittee stated that “this [subpoenaed] information will enable
Congress to assess how effectively it has encouraged service providers to self-regulate as
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Congress intended in the CDA.” Nov. 3, 2015 Ruling on Mr. Ferrer’s Objections at 17
(emphasis added and quotation marks omitted); see also id. at 10 (explaining that the subpoenaed
information “will assist Congress in its consideration of potential legislation in a number of
legitimate areas of legislative interest, including interstate and international human trafficking
and the federal law enforcement policies and resources devoted to combatting it”). In addition,
the Subcommittee told Backpage’s counsel in its August 26, 2015 and October 1, 2015 Letters
that documents in response to the subpoena were important to evaluate the effectiveness of
Backpage’s moderation procedures and to consider the need for new legislation on Internet sex
trafficking. For example, the August 26, 2015 Letter stated in part,
[T]he Subcommittee is engaged in a carefully structured inquiry into
a complex problem of significant legislative interest –– the use of
the Internet as a marketplace for interstate sex trafficking, including
trafficking in children. The purpose of this long-term investigation
is to produce a Subcommittee report addressing the problem and
reform options that have received considerable legislative and
scholarly attention. The Subcommittee’s fact-finding will inform the
Senate regarding these issues and assist in its consideration of any
potential legislation relating to, inter alia, interstate and
international human trafficking and sex trafficking; interstate
cyberstalking; federal law enforcement policies and resources to
combat trafficking; the federal anti-money laundering regime as it
concerns illegal trafficking proceeds; and federal
telecommunications policy.
Aug. 26, 2015 Letter to Backpage at 1 (emphasis added). Similarly, on October 1, 2015, the
Subcommittee told Backpage that “gaining a complete understanding of Backpage’s anti-
trafficking measures, including its screening and verification procedures for advertisements
posted in its ‘adult’ section, will aid Congress as it considers additional legislation . . . that
combats human trafficking.” Oct. 1, 2015 Letter and Subpoena at 2. The Court concludes that
the Subcommittee expressed a valid legislative purpose.
17
Mr. Ferrer argues further that the Subcommittee’s subpoena and investigation
should not be legitimized because the “goal is more prosecutorial than legislative.” Opp’n at 37.
Mr. Ferrer has consistently argued that the actual purpose and intent of the Subcommittee’s
inquiry is to condemn and punish Backpage. He cites statements made by Members of Congress
and State officials criticizing Backpage as evidence of a larger governmental effort to target the
company. Mr. Ferrer misperceives the Court’s role, which is not to determine the validity of the
legislative purpose by “testing the motives of committee members” based on public statements.
Watkins, 354 U.S. at 200. “Their motives alone would not vitiate an investigation which had
been instituted by a House of Congress if that assembly’s legislative purpose is being served.”
Id.
Finally, Mr. Ferrer has failed to support his accusation that the subpoena seeks
documents that are not pertinent to the Subcommittee’s investigation and legislative purpose.
The “pertinency” of the requested documents “was made to appear with indisputable clarity” to
Backpage. Barenblatt, 360 U.S. at 124 (internal quotation marks and citations omitted).
Backpage acknowledged its understanding when it informed the Subcommittee that it “strove to
include the documents most relevant to the Subcommittee’s professed inquiry concerning
potential legislation regarding human trafficking . . . or other illegal activities and the
investigation of such activities,” in the small group of documents it submitted in mid-November
2015. See Nov. 16, 2015 Letter at 2. “Professed” or not, further explanation is unnecessary.
In conclusion, the subpoena before the Court has a valid legislative purpose and
seeks pertinent information that falls within the scope of the Subcommittee’s authority. See
Shelton v. United States, 404 F.2d 1292, 1297 (D.C. Cir. 1968) (holding that “when the purpose
asserted is supported by references to specific problems which in the past have been or which in
18
the future could be the subjects of appropriate legislation, then we cannot say that a committee of
the Congress exceeds its broad power when it seeks information in such areas”).
C. Mr. Ferrer’s First Amendment Objections
A congressional investigation and its use of subpoenas are “subject to the
command [of the First Amendment] that the Congress shall make no law abridging freedom of
speech or press [or religion] or assembly.” Watkins, 354 U.S. at 197. The underlying rationale
of this precept is that “investigation is part of lawmaking” and the “First Amendment may be
invoked against infringement of the protected freedoms by law or by lawmaking.” Id. (citations
omitted).
Mr. Ferrer makes three arguments in this respect: (1) the subpoena constitutes an
abuse of the investigative process that encroaches on his First Amendment rights; (2) the
subpoena is part of a concerted effort to target Backpage and punish protected speech; and (3)
the subpoena is overly broad and unduly burdensome and produces a chilling effect on speech.
The Subcommittee points out that Mr. Ferrer has failed to identify any “particular or class of
documents the production of which would implicate, much less violate, his First Amendment
rights.” Reply at 11. The Subcommittee argues further that Mr. Ferrer’s claims that “the First
Amendment provides a blanket protection from having to produce any documents responsive to
subpoena requests 1, 2, and 3” and from “having even to search for responsive documents and
assert privileges on a document-by-document basis” lack merit because “the First Amendment
offers no such categorical immunity from government inquiry.” Id. (emphasis in original).
19
1. The Subpoena is not an abuse of the investigative process that violates the
First Amendment.
The question posed by Mr. Ferrer’s argument is actually whether the
Subcommittee subpoena, as presented to the Court, represents an effort to intimidate Backpage
or shut it down “through ‘actual or threatened imposition of government power or sanction’ [in
violation of] the First Amendment.” Dart, 807 F.3d at 230 (quoting American Family Ass’n, Inc.
v. City & County of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002)). This test is not
directly addressed by Mr. Ferrer.
At the outset, the Court rejects Mr. Ferrer’s argument that, as CEO of Backpage,
he has a First Amendment right not to conduct a full and comprehensive search for responsive
documents and not to file a privilege log. Backpage counsel told the Subcommittee that it had
not conducted a “complete search” and that “to be required to conduct such a search and review
in light of the significant overbreadth and First Amendment infirmities of the Subpoena would in
itself be constitutionally inappropriate.” Nov. 16, 2015 Letter at 2. There is simply no legal or
factual support for the proposition that being required to search for responsive documents would
abridge Mr. Ferrer’s protected freedoms of speech or press. Mr. Ferrer does not possess an
absolute right to be free from government investigation when there are valid justifications for the
inquiry.
The First Amendment does not give Mr. Ferrer an “unlimited license to talk” or to
publish any content he chooses. Konigsberg v. State Bar of California, 366 U.S. 36, 50 (1961).
The Supreme Court has consistently rejected throughout its history “the view that freedom of
speech and association . . . as protected by the First and Fourteenth Amendments, are
‘absolutes,’ not only in the undoubted sense that where the constitutional protection exists it
20
must prevail, but also in the sense that the scope of that protection must be gathered solely from
a literal reading of the First Amendment.” Id. at 49 (internal citation omitted).
In fact, not all speech is subject to the protection of the First Amendment. See
Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942); Schenck v. United States, 249 U.S.
47 (1919). Restrictions or limitations on protected speech that are “not intended to control [its]
content,” but rather, “incidentally limit[] its unfettered exercise” or expression, do not violate the
First Amendment, “when they have been found justified by subordinating valid governmental
interests, a prerequisite to constitutionality which has necessarily involved a weighing of the
governmental interest involved.” Konigsberg, 366 U.S. at 50-51 (citations omitted). Under such
circumstances, it is imperative to balance the nature of the intrusion against the asserted
governmental interest –– an exercise that Mr. Ferrer simply does not acknowledge, let alone
discuss, in his briefs or letters. See id. at 51 (“Whenever, in such a context, these constitutional
protections are asserted against the exercise of valid governmental powers a reconciliation must
be effected, and that perforce requires an appropriate weighing of the respective interests
involved.”) (emphasis added).
Mr. Ferrer correctly told the Subcommittee in a letter that “[t]he Constitution tells
us that ––– when freedom of speech hangs in the balance –– the state may not use a butcher knife
on a problem that requires a scalpel to fix.” Aug. 6, 2015 Letter (quoting Cooper, 939 F. Supp.
2d at 813). The problem is that the Constitution also tells us that Mr. Ferrer cannot use the First
Amendment as an omnipotent and unbreakable shield to prevent Congress from properly
exercising its constitutional authority.
Mr. Ferrer argues that the subpoena violates the First Amendment because it
intrudes into Backpage’s editorial decision-making. Some of the documents that the
21
Subcommittee is requesting may contain information that is not subject to First Amendment
protection due to its illegal nature, such as the selective editing of an advertisement for sexual
relations with a minor. Moreover, it would appear that Backpage has changed its moderation
processes for the very purpose of avoiding inquiry, and it has been accused of deliberately
structuring “its website to facilitate sex trafficking.” Doe, 817 F.3d at 16.5 Having refused to
maintain policies or procedures regarding its current moderation process, Backpage now states
that the only way to determine its moderation efforts is to review hundreds of employee emails,
which would be burdensome. See October 23, 2015 Letter at 6-7. So be it; Backpage has no
recourse but to produce all employee emails concerning moderation activities that would
otherwise remain hidden. Backpage cannot proclaim its attention to moderation efforts to avoid
ads for sex trafficking and refuse to respond with documentary evidence of how that attention
works in practice.
The claim of protected “editorial policies” rings hollow. First, of course,
Backpage has produced only scarce documentation of its previous practices on moderation, some
of which was publicly available and not entirely responsive to the Subcommittee’s Subpoena.
See, e.g., See Letter to Chairman and Ranking Member of PSI from Steven R. Ross, Esq., Nov.
13, 2015 [Dkt. 8-10] at 1-2 (producing a “previously-used list of moderation guidelines,”
5
For example, “even though the website does require that posters verify that they are 18 years of
age or older to post in that section, entering an age below 18 on the first (or any successive)
attempt does not block a poster from entering a different age on a subsequent attempt.” Doe, 817
F.3d at 16 n.2. Another example is that “Backpage also allows users to pay posting fees
anonymously through prepaid credit cards or digital currencies.” Id.
22
moderation process discussions in 2011, a sample moderation log, a list of banned terms, and
certain screenshots of the website); October 23, 2015 Letter at 6-7 (producing the website’s
Terms of Use, Posting Rules, User Agreement, and Backpage’s general counsel testimony in
2012); PSI Staff Report at 30-31 (S. Hrg. No. 114-179, at 85-86). Backpage has not produced
evidence of emails exchanged between employees concerning its moderation efforts, even
though the Subcommittee is aware of their existence because some have been obtained from
third parties. Second, Backpage has refused to perform a comprehensive search for responsive
documents, claiming that such a requirement itself violates the First Amendment. The Court has
rejected this argument above because merely searching for responsive documents does not limit
or chill First Amendment rights. Third, having failed to perform the customary duties associated
with a subpoena, Backpage has no basis in fact to assert that all employee emails are protected
First Amendment communications. United States v. Williams, 553 U.S. 285, 297 (2008)
(“Offers to engage in illegal transactions are categorically excluded from First Amendment
protection.”) (citing Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S.
376, 388 (1973)); Flytenow, Inc. v. FAA, 808 F.3d 882, 894 (D.C. Cir. 2015) (noting that “the
advertising of illegal activity has never been protected speech”) (citing Pittsburgh Press Co., 413
U.S. at 388-89).
While Backpage may engage in protected activity in some instances, that does not
mean that all of its decisions and policies receive First Amendment protection. “The First
Amendment does not protect speech that is itself criminal because it is too intertwined with
illegal activity.” Conant v. McCaffrey, 172 F.R.D. 681, 698 (N.D. Cal. 1997) (citing Giboney v.
Empire Storage & Ice Co., 336 U.S. 490, 498 (1949)) (other citation omitted). Just as
“[b]ookselling in an establishment used for prostitution does not confer First Amendment
23
coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises,”
Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 (1986), engaging in editorial decisions on a
website used for sex trafficking does not immunize Backpage from its duty to comply with a
subpoena aimed at investigating Backpage’s moderation practices. Mr. Ferrer has had ample
time to perform the necessary duties of searching for, locating, identifying, and producing either
responsive documents or a privilege log with an explanation for any withheld material. Having
done none of the above, he is hard put to plead a barren First Amendment claim without
underlying facts.
Moreover, enforcement of the subpoena in the instant case does not impose a
content-based restriction on any protected activity. The subpoena seeks documents relevant to,
inter alia, Backpage’s moderation practices and policies. See Oct. 1, 2015 Letter and Subpoena.
This is a content-neutral request. While Mr. Ferrer cites various cases where courts ruled in
favor of Backpage on First Amendment grounds, these cases are inapposite because they
involved content-based restrictions found to be both vague and overbroad. See, e.g., Hoffman,
2013 WL 4502097, at *7; Cooper, 939 F. Supp. 2d at 830-39; McKenna, 881 F. Supp. 2d at
1277-85. In these cases, different states sought to criminalize certain sex-oriented
advertisements, thus directly regulating speech despite federal law. Mr. Ferrer merely cites these
cases for the general proposition that the First Amendment has been applied to Backpage, but
does not explain why the subpoena at issue imposes a similar content-based restriction as to each
and every document that concerns Backpage’s moderation activities.
One might contend that it is unclear whether the Subcommittee’s subpoena, while
“not intended to control the content of speech, incidentally limit[s] its unfettered exercise” and is
“found [to be] justified by subordinating valid governmental interests, a prerequisite to
24
constitutionality which . . . necessarily involve[s] a weighing of the governmental interest
involved.” Konigsberg, 366 U.S. at 50-51 (citations omitted). While not identifying the relevant
legal balancing test, Mr. Ferrer relies on a series of decisions –– particularly, Bursey v. United
States, 466 F.2d 1059 (9th Cir. 1972) –– to support his objections. Bursey involved a grand jury
investigation of The Black Panther newspaper after the paper published speeches and articles
threatening to assassinate President Nixon, advocating the overthrow of the United States
government, and providing instructions on how to use firearms and make Molotov cocktails.
466 F.2d at 1065-68. The grand jury investigated, among other things, the internal management
of the paper, the identity of persons who worked on the paper, and their roles in its publication.
Mr. Ferrer’s reliance is misplaced because Bursey differs substantively from this
case. In Bursey, the “[i]nquiries about the identity of persons with whom the witnesses were
associated on the newspaper and in the Black Panther Party . . . infringed the right of
associational privacy” and had a chilling effect on the press. Id. at 1085. Bursey involved an
inquiry implicating political speech, as well as the liberty to decide what to print, to distribute
what is printed, and to protect the anonymity of disfavored speakers and political dissenters. Id.
at 1083-86. These concerns do not apply in this case. The Subcommittee does not seek any
“personally identifying information of any Backpage user or account holder.” See Oct. 1, 2015
Letter and Subpoena. Moreover, this case does not involve any editorial judgments concerning
political speech, which generally receives heightened constitutional protection. Mr. Ferrer has
failed to demonstrate that requesting information on Backpage’s efforts to screen out sex
trafficking from commercial advertisements on its website (which would be illegal, even though
Backpage would not be liable) would produce an impermissible chilling effect upon freedoms of
the press, association, or speech.
25
Notably absent from Mr. Ferrer’s briefs and letters is the required weighing of the
alleged intrusion on his First Amendment rights against the asserted governmental interest in the
subpoenaed information for its investigation on Internet sex trafficking. Such a necessary
weighing of competing interests is an exercise that is amply discussed in Bursey and other First
Amendment cases cited by Mr. Ferrer. See, e.g., Watkins, 354 U.S. at 198; United States v.
Rumely, 345 U.S. 41, 44 (1953); Bursey, 466 F.2d at 1083.6 In Bursey, the journalists did not
refuse to appear before the grand jury and did not argue that being required to appear was
unconstitutional. Instead, they objected to specific questions on the record, thus allowing the
court to weigh the First Amendment interests implicated by each question against the asserted
governmental interest. The Ninth Circuit concluded that the government’s interests, while
compelling, did not override the First Amendment interests at stake with respect to all questions.
Bursey, 466 F.2d at 1086 (citing Watkins, 354 U.S. at 198-99). With respect to some of the
questions, the Court found that their impact on “lawful associations and protected expression
[was] so slight that governmental interests must prevail.” Id. at 1086 n.20.
Here, Mr. Ferrer not only refused to appear before the Subcommittee and failed to
articulate specific objections in a privilege log, but also refused to conduct a full search for
responsive documents. Mr. Ferrer merely invokes the First Amendment in general terms and
states that the Subcommittee’s need for the information does not automatically override his
6
Like Bursey, Watkins and Rumely also involved attempts to uncover the identity of disfavored
speakers and political dissenters, efforts that directly implicated the freedoms of speech, press,
and associational privacy. See Watkins, 354 U.S. at 184-86 (involving a subpoena seeking
witness testimony to identify Communist associates); Rumely, 345 U.S. at 42-43 (involving a
subpoena seeking documents to identify purchasers of disfavored political books).
26
constitutional rights. He engages in no legal analysis to weigh his rights against the
Subcommittee’s asserted interest.
The Subcommittee argues that, since Backpage is a publisher of commercial
advertisements, Mr. Ferrer is required to show that the subpoena intrudes on his right to engage
in commercial speech, a right to which the Constitution “affords a lesser protection” than “other
constitutionally guaranteed expression.” United States v. Edge Broadcasting Co., 509 U.S. 418,
426 (1993); see also Pittsburgh Press Co., 413 U.S. at 386-87. Mr. Ferrer disagrees and argues
that the Subcommittee “tries to downplay Backpage’s First Amendment interests by incorrectly
framing this as a commercial speech case,” when in fact, “Backpage is not an advertiser, but
rather is an online intermediary for third-party speech, for whom First Amendment protections
are significant.” Opp’n at 28. Whether or not the speech at issue is “commercial,” merely
arguing that Backpage enjoys “significant” First Amendment protections proves nothing as a
matter of fact or law. “It is not enough merely to mention a possible argument in the most
skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and
put flesh on its bones.” United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). By not
attempting to balance the parties’ competing interests and failing to identify the applicable level
of First Amendment scrutiny, Mr. Ferrer is essentially saying: The Court should presume that
any responsive document that has not been produced contains constitutionally-protected
information that no governmental need could possibly overcome. His position is untenable and
without legal support.
As to some of the specifics, Mr. Ferrer has failed to explain the nature and scope
of the subpoena’s alleged intrusion into his First Amendment rights. He claims that requests for
information “relating to payment processing . . . can violate the First Amendment and chill
27
protected speech.” Opp’n at 24 (emphasis added). Even if accurate that this effect “can” be true,
Mr. Ferrer offers no facts or argument, beyond the conclusory statement, that it is true here. The
point remains unsupported and unpersuasive.
The Subcommittee attempted to circumscribe the scope of its inquiry by allowing
Backpage to redact any personally identifying information on subscribers and advertisers.
Information about Backpage’s efforts to avoid sex trafficking ads does not regulate content
directly, except that which is concededly illegal. On this record, the Court finds that to the extent
the Subpoena implicates Mr. Ferrer’s protected freedoms, it is only in an incidental and minimal
fashion. In comparison, the subpoenaed information is highly relevant to the Subcommittee’s
investigation and potential legislation on Internet sex trafficking. Understanding the magnitude
of Internet sex trafficking and how to stop it substantially outweighs Mr. Ferrer’s undefined
interests. Even if Mr. Ferrer’s activities did not involve commercial speech and were entitled to
greater scrutiny, the record shows that the subpoena’s impact on Mr. Ferrer’s First Amendment
freedoms is “so slight” that the Subcommittee’s interests must prevail. Bursey, 466 F.2d at 1086
n.20.
2. The Subpoena does not seek to punish Backpage and is not so broad and
burdensome that it would deter speech or abridge a protected freedom.
Mr. Ferrer makes two additional arguments as to why the subpoena violates the
First Amendment: (1) it is part of a “sustained, coordinated, and targeted campaign” that seeks
to punish Backpage, see Opp’n at 37; and (2) it is overly broad and unduly burdensome. With
respect to the first argument, Mr. Ferrer has failed to show how the fact that “other governmental
entities have taken actions adverse to Backpage has [any] bearing on the legitimacy of the
Subcommittee’s investigation” or the “Subcommittee’s constitutional authority to investigate
28
Backpage or to obtain information from Mr. Ferrer.” Reply at 18. The Court has found that the
subpoena serves a valid legislative purpose and seeks information that is pertinent to an
investigation within the Subcommittee’s jurisdiction or power. Thus, while some may have
expressed dismay at Backpage’s adult ads and some States have attempted to legislate against it,
the CDA continues to protect Backpage from liability as an Internet intermediary. In any event,
“[s]o long as Congress acts in pursuance of its constitutional power,” as it has in the instant case,
“the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise
of that power.” Barenblatt, 360 U.S. at 132-33; see also Watkins, 354 U.S. at 200.
With respect to the second argument, the Court notes that it is “to be expected”
that “some burden” would result from the production of responsive documents to a subpoena;
however, such burden “is necessary in furtherance of the [Subcommittee’s] legitimate inquiry
and the public interest.” FTC v. Texaco, Inc., 555 F.2d 862, 882 (D.C. Cir. 1977). “The burden
of showing that the request is unreasonable is on the subpoenaed party,” and this “burden is not
easily met where, as here, the [Subcommittee’s] inquiry is pursuant to a lawful purpose and the
requested documents are relevant to that purpose.” Id. Mr. Ferrer simply states that the
subpoena requires “production of massive amounts of information, with no explanation of how it
relates to the purported topic of the investigation.” Opp’n at 31. His statement is hard to credit,
as the topic of the investigation is clear and the “massive amounts of information” are required
only because of Backpage’s seeming efforts to avoid inquiry. As the Court has already
explained, the information is highly relevant to the stated legislative purpose. In addition, the
Subcommittee’s request is more narrow than Mr. Ferrer would admit. The Subcommittee seeks
only those emails and communications that concern Backpage’s screening practices against
Internet sex trafficking, not all “the email correspondence from and between all those employed
29
to provide moderation services for the past six years.” Opp’n at 30. There is nothing unusual,
unreasonable, or overly broad about requiring a party to search for all responsive documents on a
specific subject or topic.
Further, Mr. Ferrer’s objections totally ignore the fact that Backpage searched for,
identified, and intended to produce millions of documents responsive to request 4, yet failed to
make an effort to quantify the number of materials responsive to requests 1, 2, and 3 that would
allow consideration of the supposed burden of the subpoena. Moreover, the Subcommittee
expressed its willingness to “discuss ways of minimizing any burden . . . –– such as [] agreeing
upon electronic search terms or focusing on particular document custodians or employees.” Id.
at 22 n.20 (citing Aug. 26, 2015 Letter to Backpage). Notwithstanding the Subcommittee’s
efforts to narrow its document requests and minimize the supposed burden on Backpage, Mr.
Ferrer refused to consider such an approach.
Finally, the fact that the Subcommittee also requested similar information from
other sources, particularly individuals and entities connected to Backpage, is irrelevant to the
question of whether the Subcommittee’s subpoena in this case is overly broad and
unconstitutional. Mr. Ferrer does not cite any legal authority to the contrary.
D. Mr. Ferrer’s Due Process Objection
Mr. Ferrer argues that the Subcommittee violated his due process rights by:
(1) “failing to define the scope of its inquiry and the relevance of its requests”; and (2)
“depriving the company of the opportunity to consider and address the Subcommittee’s
ostensibly flexible and evolving objectives” of the investigation. Opp’n at 41. This Court has
already found that the scope of the inquiry and the pertinence of the requests “was made to
appear with indisputable clarity” to Backpage. Barenblatt, 360 U.S. at 124 (internal quotation
30
marks and citations omitted). In addition, the argument is undeveloped and devoid of legal
support.
The Due Process Clause of the Fifth Amendment of the Constitution, which
provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process
of law,” includes protections for both substantive and procedural due process. U.S. Const.
amend. V; see Town of Castle Rock v. Gonzales, 545 U.S. 748, 755-56 (2005). It cannot be
invoked to protect oneself from a congressional investigation merely because the investigation
may be inconvenient or undesirable. It is unclear from the record and from Mr. Ferrer’s briefs
whether he is asserting a procedural or substantive due process claim. “Judges are not expected
to be mindreaders. Consequently, a litigant has an obligation to spell out its arguments squarely
and distinctly, or else forever hold its peace.” Zannino, 895 F.2d at 17 (internal quotation marks
and citation omitted). Even if the Court were to consider both claims, Mr. Ferrer has failed to
support or establish a valid due process objection to the Subcommittee’s subpoena.
Mr. Ferrer has not asserted a cognizable protected interest under either component
of the Due Process Clause. This fact alone is fatal to Mr. Ferrer’s objection. Even if there were
a fundamental or cognizable interest at stake, Mr. Ferrer has not alleged, let alone shown, that the
deprivation of said interest was “so egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience” –– an essential element of any claim rooted in substantive due
process. Gonzalez-Fuentes v. Molina, 607 F.3d 864, 880 (1st Cir. 2010) (citation omitted); see
also United States v. Salerno, 481 U.S. 739, 746 (1987) (“So-called ‘substantive due process’
prevents the government from engaging in conduct that ‘shocks the conscience,’ . . . or interferes
with rights ‘implicit in the concept of ordered liberty.’”) (quoting Rochin v. California, 342 U.S.
165, 172 (1952) and Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)). With respect to
31
procedural due process, Mr. Ferrer failed to assert that he was deprived of a liberty or property
interest for which some process was owed. See Board of Regents v. Roth, 408 U.S. 564 (1972).
He also does not explain why he was not afforded the appropriate amount of process despite the
Subcommittee’s numerous efforts to minimize the burden on Backpage and ensure compliance
with the subpoena.
Finally, Mr. Ferrer cannot seriously argue that the Subcommittee’s “shifting
demands violate due process,” Opp’n at 42, when the demands have shifted precisely to
accommodate Mr. Ferrer’s concerns and facilitate Backpage’s compliance. The Subcommittee
tried to minimize the burden on Backpage by issuing a new subpoena that reduced the number of
categories from forty-one to eight, pursuing more narrow and targeted requests, offering to agree
upon electronic search terms or focus on particular document custodians or employees, and
choosing to enforce only three of eight categories. Backpage’s counsel acknowledged that the
categories in the October 1, 2015 subpoena were “more targeted requests.” See Oct. 23, 2015
Letter at 1. Mr. Ferrer’s due process argument lacks merit. Accordingly, the Court will reject it.
IV. CONCLUSION
For the foregoing reasons, the Court will grant the Subcommittee’s Application to
Enforce Subpoena Duces Tecum, Dkt. 1. Mr. Ferrer shall comply forthwith with the October 1,
2015 Subpoena of the Subcommittee and produce to the Subcommittee all documents responsive
to requests 1, 2, and 3 of the subpoena no later than 10 days from the date of this Opinion.
A memorializing Order accompanies this Memorandum Opinion.
Date: August 5, 2016
/s/
ROSEMARY M. COLLYER
United States District Judge
32