Backpage.com, one of the Internet’s largest sex-service websites, lost its bid Friday to claim protection under the First Amendment when a federal appeals court ruled the company must turn over internal files to Congress.
Senate investigators have been looking into whether Backpage does enough to screen out human trafficking victims, but company CEO Carl Ferrer has fought a subpoena, arguing he and his fellow employees are protected under the Constitution as online publishers.
First a lower judge rejected that and on Friday the U.S. Circuit Court of Appeals for the District of Columbia denied a stay. Backpage now has 10 days to turn over the emails and other documents sought by the Senate Permanent Subcommittee on Investigations.
“Today’s ruling is a major step forward in our efforts to stop the scourge of online human trafficking and stand up for its thousands of innocent victims across the United States,” said Sen. Rob Portman, chairman of the subcommittee.
Backpage declined to comment on the ruling Friday.
The company says it does what it can to weed out illegal ads, but it does not have a specific policy for how employees are to do that. Instead, employees make their own judgments, the company told the court — adding that it would be burdensome to have to produce emails from each of them.
But District Judge Rosemary M. Collyer said Backpage appeared to have changed its practices specifically to hide its activities. She said if turning over all of the emails is the only way to find out whether the company is taking precautions, “so be it.”
She specifically rejected Mr. Ferrer’s claims that Backpage’s methods of screening ads are editorial decision-making, and protected by the First Amendment.
Judge Collyer said illegal activities such as advertising sex with a minor cannot be protected. And she said Backpage didn’t even bother to search its own files, so it’s not clear whether any of its documents deserve protection at this point.
“The claim of protected ‘editorial policies’ rings hollow,” she wrote in an early August ruling.
The appeals court had put her ruling on hold to give Mr. Ferrer a chance to make his case, but he was unconvincing, and the judges lifted their administrative stay Friday.
Backpage has been at war with Congress for several years.
Lawmakers passed legislation known as the Stop Advertising Victims of Exploitation (SAVE) Act that made it a sex crime to advertise the services of someone who was being sexually exploited.
Backpage sued to try to stop the law, arguing it was too vague and could snare the website, which argued it was only providing a forum and couldn’t be held responsible for its customers’ “misuse.”