- The Washington Times - Tuesday, March 29, 2016

The Senate on Tuesday sued Backpage.com, one of the large online marketplaces for “adult” services, demanding that the company turn over records explaining the steps it takes to try to combat human trafficking and exploitation of sex workers.

Senate lawyers accused Backpage of trying to thwart their investigation, and said if the website prevails in its claims of First Amendment protections it would dent Congress’s powers to investigate and to follow through on subpoenas seeking information.

Sens. Rob Portman and Claire McCaskill, who led the effort, said they were left with no choice after Backpage refused to comply with a subpoena issued by the Permanent Subcommittee on Investigations, which has been looking into Backpage’s activities.

“We have given Backpage.com every opportunity to comply with a lawful subpoena, but they have continued to stonewall our bipartisan investigation,” Mr. Portman, Ohio Republican, and Ms. McCaskill, Missouri Democrat, said in a joint statement.

The Senate earlier this month voted 96-0 to go to court to enforce the subpoena — the first time in more than two decades that the chamber has taken that step.

Lawyers for Backpage said at the time of the vote that they were eager to get the matter into federal court, where they planned to argue they have First Amendment protections under the freedom of the press.

But Senate lawyers argued in their legal filing that the usual process is for a media company to search its documents and then argue on a case-by-case basis which ones should be exempt from the reach of a subpoena. Backpage CEO Carl Ferrer, however, has asserted a blanket exemption that the Senate lawyers say breaks new legal ground.

“Mr. Ferrer’s objection appears to question whether Congress can investigate this area at all. But such a notion is baseless,” the Senate lawyers said.

Congress and Backpage have been at war for several years, and lawmakers have passed legislation aimed at cracking down on online sex trafficking.

Backpage sued late last year to try to stop the Stop Advertising Victims of Exploitation (SAVE) Act from being used against the company. Backpage argued that the law was written so vaguely that it could end up ensnaring publications that do try to weed out illicit activities but inadvertently miss some postings.

Backpage said it feared zealous prosecutors might go after websites rather than the customers who run the ads.

“Criminal liability cannot constitutionally be imposed on a website merely for providing a forum for speech that some individuals misuse for sex trafficking,” the company said in its 23-page complaint. “Given the enormous volume of third-party content they receive and disseminate every day, websites cannot possibly review every post to guarantee nothing is unlawful.”

Backpage hosts online classified ad pages for more than 400 U.S. cities. The ads range from car sales and rooms for rent to an “adult” section with postings for massages, sexual fetishes and escorts.

Senators say some of those ads involve people who have been trafficked for purposes of sex, including minors.

“Sex trafficking has thrived on the Internet in part because of the high profitability and relatively low risk associated with advertising trafficking victims’ services online in multiple locations,” the Senate subcommittee said in its report urging the contempt citation. “With the aid of online advertising, traffickers can maximize profits, evade law-enforcement detection, and maintain control of victims by transporting them quickly within and between states.”

Unable to target each trafficker, senators have taken aim at Backpage and other online hosts of those kinds of ads, saying they need to make sure they are doing enough to screen out potentially illegal transactions.

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