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Senate Enforcement Action against Backpage CEO

I am a little late on this, but last month the Senate authorized a rare civil action to enforce a subpoena, utilizing a statutory mechanism for enforcement of Senate (but not House) subpoenas. See 28 U.S.C. § 1365. Under this mechanism, if a subpoena recipient fails to comply with a subpoena from a Senate committee or subcommittee, the committee reports a contempt resolution to the Senate, which may then adopt a resolution directing the Senate Legal Counsel to bring an enforcement action in federal court. See 2 U.S.C. §§ 288b, 288d.

The subpoena in question was issued by the Senate Permanent Subcommittee on Investigations (affectionately known as “PSI”) to the CEO of a company called Backpage.com, which runs an online classified advertising website. PSI opened an investigation of internet sex trafficking in April 2015, and, according to its opening brief in the enforcement case, its “research and investigation have shown 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.” The PSI subpoena sought documents related to Backpage’s practices in this regard, particularly with respect to screening of advertisements and other measures designed to prevent sex traffickers from using its website.

According to PSI, Backpage’s CEO refused to produce or even to search for documents responsive to the subpoena, claiming that “the subpoena is outside the Subcommittee’s jurisdiction, intrudes on his First Amendment rights, and seeks materials not pertinent to the Subcommittee’s investigation.” We will see what Backpage (represented by former House Counsel Steve Ross) has to say in response, but those do not sound like winning objections to me.

The Senate unanimously adopted a resolution authorizing enforcement on March 17, and on March 29 Senate Legal Counsel filed the action on PSI’s behalf in DC federal court. When I say this action is “rare,” the last time Senate Legal Counsel brought such a case was in 1993, when the Ethics Committee sought to force Senator Packwood to produce his diary.

 

 

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