The Supreme Court issued a final order declining to block a subpoena issued by the U.S. Senate Permanent Subcommittee on Investigations (“Subcommittee”) to the classified advertisement website Backpage.com. The subpoena dates back to October 2015, and seeks the production of documents relating to Backpage’s procedures for moderating advertisements and user accounts. Last week, Chief Justice Roberts temporarily stayed a District Court order requiring compliance with the subpoena, pending further submissions from the parties. However, the full Court has moved swiftly to end the stay, bringing an apparent conclusion to the Subcommittee’s protracted legal efforts to enforce its subpoena.
Backpage.com hosts user-submitted classified advertisements on topics such as “Jobs,” “Real Estate,” and “Buy / Sell / Trade.” The site also contains an “Adult” section where users can upload and browse advertisements under categories including “escorts,” “body rubs,” and “strippers & strip clubs.” The Adult section has been the subject of longstanding controversy, often criticized for serving as a prominent platform for online prostitution and child sex trafficking. Backpage General Counsel Elizabeth McDougall has defended the website’s content hosting practices, stating that Backpage “employs a triple-tiered policing system that includes automated filtering and two levels of manual review” for screening and removing potentially illegal content, and that the site routinely cooperates with law enforcement requests.
On October 1, 2015, the Subcommittee issued a subpoena to Backpage CEO Carl Ferrer, seeking documents concerning Backpage’s procedures for reviewing, blocking, and editing advertisements in the Adult section of its website. The subpoena was issued as part of an investigation commenced by the Subcommittee in April 2015 into human trafficking on the Internet. While Backpage produced a handful of publicly available documents to the Subcommittee, it largely refused to comply with the subpoena, raising First Amendment, overbreadth, and relevance objections. Following this resistance and Mr. Ferrer’s refusal to appear before the Subcommittee, the Senate voted in March 2016 to hold Backpage in contempt—the first time it had taken such action in more than 20 years—and to pursue a civil lawsuit against Backpage to enforce the subpoena.
In court, Backpage advanced arguments that the Subcommittee’s subpoena violated its due process rights, exceeded the scope of the Subcommittee’s authority, and constituted an impermissible burden on First Amendment liberties. Those arguments did not succeed—on August 5, U.S. District Court Judge Rosemary Collyer ordered Backpage to fully comply with selected portions of the subpoena within 10 days. Responding to the First Amendment concerns, the District Court found Backpage’s free speech interests to be “conclusory” and “undefined,” and noted that the Subcommittee made efforts to limit the scope of the information it sought. Accordingly, the District Court determined that any impact the subpoena might have on Backpage’s First Amendment interests were “slight” and “substantially outweigh[ed]” by the Subcommittee’s interest in seeking information “highly relevant” to its investigation of Internet sex trafficking. The court further noted that in complying with the subpoena, the safe harbor provision of the Communications Decency Act would continue to “protect Backpage from liability as an Internet intermediary.”
Backpage sought an immediate stay of the District Court’s decision from the U.S. Court of Appeals for the District of Columbia Circuit, which rejected Backpage’s petition. Backpage then went to the Supreme Court to seek the same relief. In its Supreme Court petition, Backpage characterized its process for reviewing user submitted advertisements as a “core editorial function,” and argued that the Subcommittee was making “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.” Although the Chief Justice Roberts granted a temporary stay to allow the Subcommittee to submit a response, a week later the Supreme Court denied Backpage’s application, in a 7-0 decision containing no further analysis (with Justice Alito abstaining).
In a press release praising the order, Subcommittee Chair Rob Portman (R-OH) stated that “We look forward to reviewing the subpoenaed documents that Backpage has unlawfully tried, for 11 months, to withhold from Congress. We will continue our bipartisan investigation and our work to ensure that our laws effectively protect the most vulnerable from those who commit and facilitate th[ese] reprehensible crimes.”
Although the Backpage saga seems to involve a relatively unique legal situation – the exercise of Senate subpoena authority—the underlying questions it implicates about First Amendment protections afforded to websites’ moderation and editing practices and the scope of governmental investigative authority have broader relevance. Internet companies that host third-party content should thus stay alert to this case and others like it, and the precedents and expectations they may set in the government investigation context.