U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

1 

59–008 

" ! SENATE 

114TH CONGRESS

2d Session 

REPORT

2016

114–214 

Calendar No. 375 

RESOLUTION DIRECTING THE SENATE 

LEGAL COUNSEL TO BRING A CIVIL 

ACTION TO ENFORCE A SUBPOENA OF THE 

PERMANENT SUBCOMMITTEE ON 

INVESTIGATIONS 

R E P O R T 

OF THE

COMMITTEE ON HOMELAND SECURITY AND 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE 

ON

S. Res. 377 

FEBRUARY 29, 2016.—Ordered to be printed 


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(II) 

COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS 

RON JOHNSON, Wisconsin, Chairman 

JOHN MCCAIN, Arizona 

ROB PORTMAN, Ohio 

RAND PAUL, Kentucky 

JAMES LANKFORD, Oklahoma 

MICHAEL B. ENZI, Wyoming 

KELLY AYOTTE, New Hampshire 

JONI ERNST, Iowa 

BEN SASSE, Nebraska 

THOMAS R. CARPER, Delaware 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

TAMMY BALDWIN, Wisconsin 

HEIDI HEITKAMP, North Dakota 

CORY A. BOOKER, New Jersey 

GARY C. PETERS, Michigan 

KEITH B. ASHDOWN, Staff Director 

CHRISTOPHER R. HIXON, Chief Counsel 

DAVID N. BREWER, Chief Investigative Counsel 

GABRIELLE D’ADAMO SINGER, Deputy Chief Counsel for Governmental Affairs 

GABRIELLE A. BATKIN, Minority Staff Director 

JOHN P. KILVINGTON, Minority Deputy Staff Director 

MARY BETH SCHULTZ, Minority Chief Counsel 

LAURA W. KILBRIDE, Chief Clerk 


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1The Permanent Subcommittee on Investigations is a subcommittee of the Homeland Security 

and Governmental Affairs Committee (the Committee). Pursuant to 2 U.S.C. § 288d, this report 

recommending adoption of a resolution authorizing the Senate Legal Counsel to bring a civil 

action compelling production must be made by the Homeland Security and Governmental Affairs 

Committee on behalf of the Permanent Subcommittee on Investigations. 

Calendar No. 375 

114TH CONGRESS SENATE REPORT " ! 2d Session 114–214 

RESOLUTION DIRECTING THE SENATE LEGAL COUNSEL TO BRING A CIVIL 

ACTION TO ENFORCE A SUBPOENA OF THE PERMANENT SUBCOMMITTEE ON INVESTIGATIONS 

FEBRUARY 29, 2016.—Ordered to be printed 

Mr. JOHNSON, from the Committee on Homeland Security and 

Governmental Affairs, submitted the following 

R E P O R T 

[To accompany S. Res. 377] 

The Committee on Homeland Security and Governmental Affairs, 

having considered an original resolution (S. Res. 377) directing the 

Senate Legal Counsel to bring a civil action to enforce a subpoena 

of the Permanent Subcommittee on Investigations, reports favorably thereon without amendment and recommends that the resolution do pass. 

CONTENTS 

Page 

I. Purpose ........................................................................................................... 1 

II. Background .................................................................................................... 2 

III. Discussion ....................................................................................................... 6 

IV. Legislative History ......................................................................................... 13 

I. PURPOSE

Backpage.com, LLC (Backpage) owns and operates the largest 

commercial sex services advertising platform in the United States, 

Backpage.com. Backpage officials have publicly acknowledged that 

criminals use the website for sex trafficking, including trafficking 

of minors. 

On October 1, 2015, as part of an investigation of businesses that 

directly or indirectly facilitate criminal sex trafficking, the Permanent Subcommittee on Investigations (the Subcommittee) 1 issued a 

subpoena duces tecum to Carl Ferrer, Chief Executive Officer of 

Backpage. The subpoena required the production of documents conVerDate Sep 11 2014 07:35 Mar 03, 2016 Jkt 059008 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR214.XXX SR214

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2 U.S. Dep’t of Homeland Security, Blue Campaign: What is Human Trafficking? (Sept. 14, 

2015), http://www.dhs.gov/blue-campaign/what-human-trafficking. 3See 18 U.S.C. § 1591(a); 27 U.S.C. § 7102(10). 4 U.S. Dep’t of State, Trafficking in Persons Report 2013, at 7 (June 2013), http:// 

www.state.gov/documents/organization/210737.pdf. 5Polaris Project, Sex Trafficking, http://www.polarisproject.org/sex-trafficking. 6 U.S. Dep’t of Justice, Bureau of Justice Statistics, Characteristics of Suspected Human Trafficking Incidents, 2008–2010, at 1 (Apr. 2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/ 

cshti0810.pdf. 

cerning: Backpage’s policies and practices with respect to reviewing, blocking, editing, and modifying advertisements; the extent to 

which Backpage cooperates with law enforcement investigations of 

sex trafficking; Backpage’s removal of unlawful advertisements in 

its ‘‘adult’’ sections; the number of advertisements Backpage deletes or blocks; and revenue generated by Backpage’s adult advertisements. Backpage has not complied with the subpoena. Factfinding in this area will assist Congress in its consideration of potential legislation in a number of areas of legislative interest, including interstate and international human trafficking and the federal law-enforcement policies and resources devoted to combatting 

it. 

The Senate possesses constitutional and statutory authority to 

require witnesses to provide evidence. A mechanism for enforcing 

those rights is supplied under section 705(c) of the Ethics in Government Act of 1978, 2 U.S.C. 288d(c), which requires that a proposed resolution to authorize the Senate Legal Counsel to bring a 

civil action to compel Mr. Ferrer to comply with certain of the document requests in the Subcommittee’s subpoena, be accompanied by 

a report on the following subjects: 

(A) the procedure followed by the Subcommittee in issuing 

the subpoena to Mr. Ferrer; 

(B) the extent to which Mr. Ferrer has complied with the 

subpoena; 

(C) the objections raised by Mr. Ferrer; and 

(D) the comparative effectiveness of bringing a civil action 

compared to other remedies. 

To place the Committee’s request for civil enforcement of its subpoena in proper context, this report first provides the background 

to the Subcommittee’s October 1, 2015, subpoena and its relevance 

to the Subcommittee’s investigation. 

II. BACKGROUND

A. Sex Trafficking on the Internet 

Human trafficking is a crime generating billions of dollars each 

year in illegal proceeds, making it more profitable than any 

transnational crime except drug trafficking.2 Under United States 

law, human trafficking includes, among other things, the unlawful 

practice of selling, soliciting, or advertising the sexual services of 

minors or of adults who have been coerced into participating in 

commercial sex.3 Precise empirical data concerning this black-market trade are scarce. But, in 2013, social scientists estimated that 

there were as many as 27 million victims of human trafficking 

worldwide,4 including 4.5 million people trapped in sexual exploitation.5 In the United States, over eight in ten suspected incidents 

of human trafficking involve sex trafficking.6


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7 U.S. Dep’t of Justice, Office of Juvenile Justice & Delinquency Prevention, Literature Review: 

Commercial Sexual Exploitation of Children/Sex Trafficking, at 3 (2014) (citing Bureau of Justice Statistics data), http://www.ojjdp.gov/mpg/litreviews/CSECSexTrafficking.pdf. 8Testimony of Yiota G. Souras, Senior Vice President & General Counsel, National Center for 

Missing & Exploited Children, before Permanent Subcommittee on Investigations, at 2 (Nov. 19, 

2015); Br. of National Center for Missing & Exploited Children, J.S. v. Village Voice Media 

Holdings, LLC, No. 4492–02–II, at 3 (Wash. Sup. Ct. Sept. 15, 2014). Congress designated 

NCMEC to be the ‘‘official national resource center and information clearinghouse for missing 

and exploited children.’’ 42 U.S.C. § 5773(b)(1)(B). Among its 22 statutorily authorized duties, 

NCMEC assists law enforcement in identifying and locating victims of sex trafficking and operates a ‘‘cyber tipline,’’ which collects reports of Internet-related child sexual exploitation, including suspected child sex trafficking. Id. §§ 5773(b)(1)(P)(3), (b)(1)(V). 9Testimony of Yiota G. Souras, Senior Vice President & General Counsel, National Center for 

Missing & Exploited Children, before Permanent Subcommittee on Investigations, at 3 (Nov. 19, 

2015). 10 Urban Institute, Estimating the Size and Structure of the Underground Commercial Sex 

Economy in Eight Major US Cities, at 234 (March 2014) (‘‘The overall sex market has expanded 

. . . and law enforcement detection has been reduced.’’), http://www.urban.org/uploadedpdf/ 

413047-underground-commercialsex-economy.pdf; id. at 237–38 (‘‘The results presented here corroborate [previous] findings that the use of the Internet is not necessarily displacing streetbased sex work, but is likely helping to expand the underground commercial sex market by providing a new venue to solicit sex work.’’). 11 Backpage.com, LLC v. Dart, No. 15-cv-6340, Doc. 88–4, at 3 (N.D. Ill. Oct. 6, 2015), rev’d., 

Backpage.com, LLC v. Dart, No 15–3047 (7th Cir. Nov. 30, 2015). 12 Id. 13 Urban Institute, supra n.15, at 218 (reporting on multiple studies concluding Internet-facilitated commercial sex transactions are ‘‘not as easily detected by law enforcement’’); U.S. Dep’t 

of Justice, National Strategy for Child Exploitation Prevention and Interdiction: A Report to Congress, at 33 (Aug. 2010) (noting the increase in profitability of trafficking children with the aid 

of the Internet and explaining how the movement of sex trafficking victims from city to city, 

with the help of online advertisements, makes building criminal cases more difficult), http:// 

www.justice.gov/psc/docs/natstrategyreport.pdf; Michael Latonero, Human Trafficking Online: 

The Role of Social Networking Sites and Online Classifieds, at 13 (Sept. 2011) (quoting former 

NCMEC president and CEO Ernie Allen as stating, ‘‘[o]nline classified ads make it possible to 

pimp these kids to prospective customers with little risk’’), https:// 

technologyandtrafficking.usc.edu/files/2011/09/HumanTraffickinglFINAL.pdf. 

Too often, the victims of sex trafficking are minors. The Department of Justice has reported that more than half of sex-trafficking 

victims are 17 years old or younger.7 In the last five years, the National Center for Missing and Exploited Children (NCMEC) reported an 846 percent increase in reports of suspected child sex— 

trafficking—an increase the organization found to be ‘‘directly correlated to the increased use of the Internet to sell children for 

sex.’’ 8 Children who run away from home are particularly vulnerable to this crime; ‘‘[i]n 2014, one in six endangered runaways reported to NCMEC was likely a child sex-trafficking victim.’’ 9

Online advertising has transformed the commercial sex trade 

and in the process has contributed to the explosion of domestic sex 

trafficking.10 Sex trafficking previously took place ‘‘on the streets, 

at casinos and truck stops, and in other physical locations.’’ 11 Now 

it appears that ‘‘most child sex trafficking currently occurs online.’’12 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.13

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. 

B. Commercial Sex Advertising and Backpage.com 

Sex traffickers have made extensive use of websites that serve as 

marketplaces for ordinary commercial sex and escort services. 

These sites may facilitate the sex trade by providing an easily accessible forum that matches buyers of sex with anonymous traffickers selling minors and adults. 


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14 Backpage’s predecessor company was an alternative news weekly, The New Times, founded 

in 1970 in Phoenix by James Larkin and Michael Lacey. In 2005, New Times Media acquired 

The Village Voice, based in New York, and the new entity, still owned by Mr. Larkin and Mr. 

Lacey, renamed itself Village Voice Media. Richard Siklos, The Village Voice, Pushing 50, Prepares to Be Sold to a Chain of Weeklies, The New York Times (Oct. 24, 2005), available at 

http://www.nytimes.com/2005/10/24/business/the-village-voice-pushing-50-prepares-to-be-soldto-a-chain-of-weeklies.html?lr=0. In response to public pressure regarding its adult advertisements and the alleged connection to sex trafficking, Village Voice Media is reported to have 

spun off its media holdings into Voice Media Group. In the wake of that spinoff, Village Voice 

Media, and its owners Mr. Larkin and Mr. Lacey, retained ownership of Backpage. Mallory Russell, Village Voice Management Buyout Leaves Backpage.com Behind, Advertising Age (Sept. 24, 

2012), available at http://adage.com/article/media/village-voice-management-buyout-leavesbackpage/237371/. 15 Advanced Interactive Media Group, Prostitution-ad revenue up 9.8 percent from year ago 

(Mar. 22, 2013), http://aimgroup.com/2012/03/22/prostitution-ad-revenue-up-9-8-percent-fromyear-ago/. 16Testimony of Yiota G. Souras, Senior Vice President & General Counsel, National Center 

for Missing & Exploited Children, before Permanent Subcommittee on Investigations, at 3 (Nov. 

19, 2015). This 71% figure does not include reports to the cyber tipline made by Backpage itself. 17 Br. of Commonwealth of Massachusetts, Doe ex rel. Roe v. Backpage.com, LLC et al., No. 

14–13870, Dkt. No. 30, at 7 (D. Mass. Feb. 20, 2015) (‘‘In Massachusetts, seventy-five percent 

of the cases that the Attorney General has prosecuted under our state human trafficking law, 

plus a number of additional investigations, involve advertising on Backpage.’’). 18 Backpage.com, LLC v. McKenna, 881 F. Supp. 2d 1262, 1267 (W.D. Wash. 2012). 19Letter from the Nat’l Ass’n of Attorneys General to Samuel Fifer, Esq., Counsel for 

Backpage.com, LLC (Aug. 31, 2011), http://www.ct.gov/ag/lib/ag/presslreleases/2011/ 

083111backpageletter.pdf. 20 Id. 21 Id. 

One such site, Backpage.com, is similar in look and layout to the 

online marketplace Craiglist.com. It displays advertisements in sections such as ‘‘community,’’ ‘‘buy/sell/trade,’’ ‘‘jobs,’’ as well as 

‘‘adult.’’ Advertisements in the ‘‘adult’’ section typically consist of a 

headline, a photo or photos, video, and a brief description of the 

services being offered. Backpage’s classified listings are localized by 

city or region; as of November 2015, Backpage had sites in 431 cities in the United States and 444 other cities around the world.14

Backpage is a market leader: in 2013, it reportedly netted more 

than 80 percent of all revenue from online commercial sex advertising in the United States.15 NCMEC has reported that of the suspected child trafficking reports it receives from the public, 71 percent involve Backpage.16 According to the Massachusetts Attorney 

General, ‘‘[t]he vast majority of prosecutions for sex trafficking now 

involve online advertising, and most of those advertisements appear on Backpage.’’ 17 A Federal court in Seattle echoed those findings, concluding in 2012 that ‘‘[m]any child prostitutes are advertised through online escort advertisements displayed on 

Backpage.com and similar websites.’’ 18

The National Association of Attorneys General has sounded similar alarms concerning Backpage’s facilitation of sex trafficking. On 

August 31, 2011, 45 state attorneys general sent a letter in which 

they described Backpage as a ‘‘hub’’ of ‘‘human trafficking, especially the trafficking of minors.’’ 19 Pointing to more than 50 cases 

over the previous three years involving individuals trafficking or 

attempting to traffic minors on Backpage, the attorneys general argued that Backpage’s screening efforts were ‘‘ineffective.’’ 20 They 

requested documents from Backpage concerning the company’s 

public claims that it screens and removes advertisements linked to 

sex trafficking. Backpage provided no substantive response to that 

request.21


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22 Complaint, M.A. ex rel. P.K. v. Village Voice Media Holdings, LLC, No. 10–cv–01740, Dkt. 

No. 1, ¶ 9 (E.D. Mo. Sept. 16, 2010). 23 Id. at ¶ 12. 24 Id. 25 47 U.S.C. § 230. 26M.A. ex rel. P.K. v. Village Voice Media Holdings, 809 F.Supp.2d 1041, 1052, 1058 (E.D. 

Mo. 2011). 27Doe ex rel. Roe v. Backpage.com, LLC, 2015 WL 2340771 (D. Mass. Oct. 16, 2014). 28 Amended Complaint, Doe ex rel. Roe v. Backpage.com, LLC, No. 14–cv–13870, Dkt. No. 9, 

¶ 4 (D. Mass. Nov. 6, 2014). 29See Doe ex rel. Roe, 2015 WL 2340771, at *7–*11. 30J.S. v. Village Voice Media Holdings, 2015 WL 5164599, at *2 (Wash. Sup. Ct. Sept. 3, 

2015). 31 Id. 32 Id. at *3. 

C. Victim lawsuits 

Backpage has also faced a number of civil lawsuits brought by 

trafficking victims. In September 2010, Backpage faced its first 

civil lawsuit, brought in the Eastern District of Missouri by a 

minor who was sold for sex and advertised on Backpage by her 

trafficker.22 She alleged that Backpage ‘‘had a strong suspicion’’ 

that the crimes of facilitating prostitution, exploitation of children, 

and child pornography were being committed on its site ‘‘yet was 

so indifferent that it failed to investigate for fear of what it would 

learn.’’ 23 She further alleged that Backpage ‘‘had a desire that 

[the] posters would accomplish their nefarious illegal prostitution 

activities so that the posters would return to the website and pay 

for more posting.’’ 24 The plaintiff sought a civil remedy pursuant 

to 18 U.S.C. § 2255, which creates a private right of action for child 

victims of sexual exploitation. Backpage persuaded the district 

court to dismiss the case on the ground that it was entitled to immunity under Section 230 of the Communications Decency Act 

(CDA),25 which shields web publishers from civil liability for content to which they do not materially contribute.26

Backpage also faces an ongoing civil suit by minor sex-trafficking 

victims in Massachusetts.27 Unlike the plaintiff in the Missouri 

case, the Massachusetts plaintiffs allege that Backpage’s platform, 

categories, and filters actually ‘‘assist[ed] in the crafting, placement, and promotion of illegal advertisements offering plaintiffs for 

sale.’’ 28 But again, Backpage prevailed. The district court held that 

Backpage was immune from civil liability under the CDA.29 The 

plaintiffs’ appeal is pending. 

The Supreme Court of Washington State, however, has reached 

a contrary conclusion. That court held, in a suit brought by underage sex-trafficking victims, that Backpage would not be immune 

from suit if, as the plaintiffs alleged, Backpage ‘‘helped develop the 

content of [the offending] advertisements.’’ 30 The Washington 

plaintiffs allege that Backpage helped with ad-content creation 

through its posting rules, screening process, and content requirements.31 The court held these allegations warrant additional factual development, explaining that ‘‘[i]t is important to ascertain 

whether in fact Backpage designed its posting rules to induce sex 

trafficking to determine whether Backpage is subject to suit under 

the CDA because ‘a website helps to develop unlawful content, and 

thus falls within the exception to [CDA immunity], if it contributes 

materially to the alleged illegality of the conduct.’ ’’ 32 The Washington case is now entering civil discovery. 


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33Memorandum from Sen. Rob Portman & Sen. Claire McCaskill to Members of Subcommittee Re: Notification of Pending Investigations (May 22, 2015) (on file with Committee 

staff). 34S. Res. 73 § 12(e)(1)(D), 114th Cong. 35 Id. at § 12(e)(1)(C). 36See 18 U.S.C. §§ 1581–1592. 37See Pub. L. 108–193, 117 Stat. 2875, 2879, § 5(b); 18 U.S.C. § 1961(1). 38The Subcommittee is also authorized to investigate ‘‘the efficiency and economy of operations of all branches of the Government.’’ S. Res. 73 § 12(e)(1)(A). This provision provides an 

additional, independent jurisdictional basis for the present investigation. Congress funds an 

array of government agencies and programs that are engaged in anti-trafficking efforts, and has 

an interest in determining whether these programs are operating efficiently and effectively. 

III. DISCUSSION

A. The procedure followed by the committee in issuing the subpoena 

to Mr. Ferrer 

Under Rule XXV(k)(1) of the Standing Rules of the Senate, the 

Committee is a duly authorized Senate committee. Under Rule 7(a) 

of the Rules of Procedure of the Committee, the Subcommittee is 

a duly authorized subcommittee of the Committee. Therefore, 

under Rule XXVI(1) of the Standing Rules of the Senate, both the 

Committee and the Subcommittee are authorized ‘‘to require by 

subpena [sic] or otherwise the attendance of such witnesses.’’ 

On May 22, 2015, the Subcommittee Chairman and Ranking 

Member notified all Subcommittee members by memorandum that 

the Subcommittee was investigating ‘‘businesses that directly or indirectly facilitate criminal sex trafficking conduct, including trafficking in minors.’’ 33 The investigation was authorized by Senate 

Resolution 73, Section 12(e), 114th Congress, which empowers the 

Subcommittee to investigate ‘‘all other aspects of crime’’ within the 

United States that affect the ‘‘national health, welfare, and safety,’’ 34 and the Subcommittee is specifically tasked with examining 

‘‘organized criminal activity which may operate in or otherwise utilize the facilities of interstate or international commerce.’’ 35

Human trafficking is a Federal crime,36 and human trafficking offenses are predicates to liability under the Racketeer Influenced 

Corrupt Organizations (RICO) Act.37 The Subcommittee’s authority 

to investigate crime, its effects on public welfare and safety, and 

how the facilities of interstate commerce are used to commit it 

places this investigation squarely within its jurisdiction.38

The Subcommittee’s investigation has not been limited to 

Backpage. To the contrary, the Subcommittee has been engaged 

since April 2015 in a broad investigation of the problem of human 

trafficking on the Internet. The Subcommittee has conducted interviews and briefings with over fifty relevant parties, including victims’ rights groups, nonprofit organizations, technology companies, 

financial institutions, academic researchers, and Federal, state, 

and local law-enforcement officials. The Subcommittee has also 

conducted interviews with—and received documents from—several 

websites in the commercial sex advertising industry that are similar to Backpage. 

The Subcommittee first contacted Backpage on April 15, 2015, to 

request an interview to discuss Backpage’s business practices. On 

June 19, 2015, after extensive communication with Backpage’s outside counsel regarding the specific topics that the Subcommittee 

wished to discuss, the Subcommittee interviewed Backpage’s General Counsel, Elizabeth McDougall. 


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39 Email from Senior Counsel of Subcommittee to Backpage (Jun. 22, 2015) (on file with Committee staff). 40 Email from Backpage to Subcommittee (July 1, 2015) (on file with Committee staff). 41Subcommittee Subpoena, Oct. 1, 2015 (on file with Committee staff). 42Letter from Backpage to Subcommittee (Aug. 6, 2015) (on file with Committee staff). 43Letter from Subcommittee to Backpage (Aug. 26, 2015) (on file with Committee staff). 44 Id. 45Subcommittee Subpoena to Backpage Employee A, Aug. 13, 2015 (on file with Committee 

staff); Subcommittee Subpoena to Backpage Employee B, Aug. 13, 2015 (on file with Committee 

staff). 46Letter from counsel for Backpage Employee A and Employee B to Subcommittee (Sept. 3, 

2016) (on file with Committee staff). 47Letter from Subcommittee to Backpage (Oct. 1, 2015) (on file with Committee staff): Subcommittee Subpoena, Oct. 1, 2015, (on file with Committee staff). 

During the interview, Ms. McDougall could not answer several 

critical questions about Backpage’s ownership, statistics on reporting to law enforcement and to NCMEC, and the ‘‘moderation’’ procedures Backpage uses to review and screen advertisements. After 

the interview, on June 22, 2015, the Subcommittee sent Backpage 

follow-up questions and requests for information.39 Despite initially 

indicating that it would do so, Backpage failed to provide answers 

or documents.40

On July 7, 2015, after providing the required notice to the Committee Chairman and Ranking Member, the Subcommittee issued 

a duly-authorized subpoena (the July 7 subpoena) to Backpage requesting documents related to Backpage’s basic corporate structure, the steps it takes to review advertisements for illegal activity, 

its interaction with law enforcement, and its data retention policies, among other relevant subjects.41 The subpoena was returnable 

August 7, 2015. On August 6, Backpage informed the Subcommittee by letter that it would not produce any documents in response to the subpoena.42 It contended that the subpoena violated 

the First Amendment, on the ground that Backpage is a publisher 

of protected speech. 

After carefully considering Backpage’s position, the Subcommittee Chairman and Ranking Member sent a letter to 

Backpage explaining that the First Amendment cases on which 

Backpage relied were inapposite.43 The Subcommittee invited 

Backpage to submit further explanation of its position.44 Despite 

committing to do so in a September 14, 2015, meeting with Subcommittee staff, Backpage never submitted a further explanation of 

its refusal to produce documents pursuant to the July 7 subpoena. 

In an attempt to continue its fact-finding, the Subcommittee 

issued subpoenas for the depositions of two Backpage employees on 

August 13, 2015.45 The two employees retained individual counsel 

and, invoking their Fifth Amendment privilege, declined to answer 

any questions on the ground that their testimony might tend to incriminate them.46 In addition, Mr. Ferrer declined to be voluntarily 

interviewed by Subcommittee staff. 

On October 1, 2015, after providing the required notice to the full 

Committee Chairman and Ranking Member, the Subcommittee 

withdrew its original subpoena and issued a new, more targeted 

subpoena directly to Mr. Ferrer.47 This subpoena requested, among 

other items, documents concerning Backpage’s review of advertisements, commonly referred to within the company as ‘‘moderation,’’ 

including information related to editing or modifying ads before 

publishing. The subpoena also requested documents concerning 

metadata, document retention, basic corporate information, and 


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48Letter from Subcommittee to Mr. Ferrer (Oct. 20, 2015) (on file with Committee staff). 49Submission from Backpage to Subcommittee (Oct. 23, 2015) (on file with Committee staff). 50Letter from Backpage to Subcommittee (Oct. 23, 2015) (on file with Committee staff). 51Subcommittee Ruling, Nov. 3, 2015 (on file with Committee staff). In that ruling the Chairman and Ranking Member also continued Mr. Ferrer’s appearance to November 19, 2015. See 

supra Part III.C. 52Despite the order to comply with the subpoena by November 12, Backpage did not file any 

response until the following day, November 13. Backpage neither sought an extension of the 

deadline nor did it furnish any excuse for its tardy submission. 53Letter from Backpage to Subcommittee (Nov. 13, 2015) (on file with Committee staff). 54Letter from Backpage to Subcommittee (Nov. 16, 2015) (on file with Committee staff). 55 Backpage also produced twenty pages of publicly available ‘‘error messages’’ in response to 

Request Two. 

revenue derived from adult advertisements. The subpoena required 

Mr. Ferrer to produce the documents named in the subpoena 

schedule by October 23, 2015, or else to appear personally on that 

date. The Subcommittee later continued Mr. Ferrer’s personal appearance to November 19, 2015—the date of the Subcommittee’s 

hearing.48

B. The extent to which Mr. Ferrer has complied with the subpoena 

On the return date of October 23, 2015, Mr. Ferrer produced 

twenty-one pages of publicly available documents.49 The company 

also submitted a letter objecting to the subpoena on the grounds 

that it violated the First Amendment and contained document requests that were not pertinent to a proper legislative investigation.50

On November 3, 2015, the Subcommittee overruled Backpage’s 

objections and ordered and directed Mr. Ferrer to comply with the 

subpoena by November 12, 2015.51 On November 13, 2015,52

Backpage attorneys wrote to the Subcommittee to explain that the 

company maintained its First Amendment and pertinence objections to the subpoena, but as a ‘‘gesture of good faith,’’ it would 

produce some documents in response to certain of the subpoena’s 

eight document requests.53 The bulk of Backpage’s November 13 

production consisted of records that the company had previously 

provided to law-enforcement entities pursuant to subpoena. Based 

on the nature of that production, however, and the dearth of documents produced in response to requests concerning the review of 

adult advertisements, the Subcommittee is confident that Backpage 

is withholding a substantial volume of responsive documents. Indeed, counsel for Backpage has acknowledged that the company did 

not conduct a complete search for responsive documents.54

Apart from publicly available documents, Mr. Ferrer produced no 

more than twenty pages of documents responsive to the core of the 

Subcommittee’s request—the review and editing of adult advertisements—embodied in Requests One, Two, and Three. Importantly, 

Backpage failed to produce any internal emails concerning the 

moderation of ads—the subject of Request One (‘‘[a]ny documents 

concerning Backpage’s reviewing, blocking, deleting, editing, or 

modifying advertisements in Adult Sections, either by Backpage 

personnel or by automated software processes . . .’’). As for Request Two, which concerned Backpage’s ‘‘Banned Terms List,’’ (i.e., 

terms not permitted in adult advertisements), Backpage provided 

a one-page list of banned terms, but failed to provide any internal 

documents relating to the creation or modification of the list, as required by the subpoena.55 Nor did it provide any internal emails 

concerning the blocking or flagging of user accounts—the subject of 


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56Subcommittee staff has learned that image hashing and the collection of metadata are important anti-trafficking tools available for reviewing commercial sex advertisements. ‘‘Hashing’’ 

gives photos a unique fingerprint that enables one to search for identical photos in other places, 

including on different web pages. Similarly, the ‘‘metadata’’ contained in electronic files is another important law-enforcement tool. A file’s ‘‘metadata’’ may include author, date and time 

created, date modified, and file size. Image metadata may also include geographic coordinates 

for location at the time the image was created. 57 By letter dated November 13, 2015, Backpage produced incomplete statistics with respect 

to subparts (a) and (b) of Request Six, and failed to address subpart (c) concerning the number 

of adult advertisements directly reported to law enforcement. Instead, Backpage provided statistics concerning the company’s reporting to the National Center for Missing and Exploited Children. As for Request Seven, the company produced no statistics in response to subpart (a), and 

incomplete statistics in response to subparts (b) and (c). 

Request Three (‘‘[a]ny 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.’’). 

With respect to Request Five, which covers documents relating to 

image hashing, metadata, and data retention,56 Backpage produced 

no documents, claiming that it did not maintain formal data retention policies and was ‘‘unaware of non-privileged documents responsive to the remainder of the request[.]’’ Backpage failed to articulate the type of privilege to which it was referring; it also failed to 

provide a log of privileged items that it was withholding, as the 

subpoena requires. 

The company’s response to the rest of the subpoena was similarly 

inadequate, as it produced incomplete information in response to 

Requests Six and Seven relating to advertising volume and reporting, and no documents at all in response to Request Eight concerning financial information.57

While Backpage produced virtually no non-public documents concerning moderation, which is the core of the Subcommittee’s request, it did make a production of law-enforcement related documents that are of marginal value to the Subcommittee. That production consisted of 16,838 pages of documents, more than 16,000 

of which, or some 96 percent, constituted the entire production of 

Backpage’s responses to law-enforcement subpoenas. Just one file 

produced in this category contained more than 750 pages of documents—including hundreds of pages of ads and photos from 2013 

and 2014—responsive to a single government subpoena requesting 

information relevant to one Backpage user. Although Backpage explained that it believed this material was responsive to Request 

Four and that the company had ‘‘five million’’ additional pages of 

this material to produce, Subcommittee staff informed Backpage it 

had no need for that submission. Backpage also produced an additional 350 pages of emails from law enforcement officials thanking 

Backpage employees for responding to police inquiries. 

Accordingly, Backpage’s production cannot properly be described 

as a ‘‘gesture of good faith,’’ as the company claimed in its November 13 letter. For example, Backpage produced eight pages of email 

correspondence with a third-party consultant who voiced concern 

about potentially underage children advertised for sex on 

Backpage.com. Despite producing these emails exchanged with a 

third party, Backpage failed to produce any internal emails about 

the same or similar subjects—that is, the company’s efforts to combat the problem of human trafficking on its site. As the SubVerDate Sep 11 2014 07:35 Mar 03, 2016 Jkt 059008 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\SR214.XXX SR214

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58Subcommittee Report, Recommendation to Enforce a Subpoena Issued to the CEO of 

Backpage.com, LLC, (Nov. 19, 2015), available at http://www.hsgac.senate.gov/subcommittees/ 

investigations/hearings/human-trafficking-investigation. 59 In a June 19, 2015 interview with Backpage General Counsel Elizabeth McDougall, she explained that 120 of 180 total employees worked in Backpage’s ‘‘moderation’’ section. It is unclear 

how many employees are still engaged in the review of adult advertisements. 60See Subcommittee Subpoena, Oct. 1, 2015 (on file with Committee staff); see also Letter 

from Subcommittee to Backpage (Aug. 26, 2015) (on file with Committee staff); Letter from Subcommittee to Backpage (Aug. 28, 2015) (on file with Committee staff). 61See Part III.C. 62Letter from Backpage to Subcommittee (Nov. 16, 2015) (on file with Committee staff). 63 Email from Chief Counsel of Subcommittee to Backpage (Nov. 16, 2015) (on file with Committee staff). 64Letter from Backpage to Subcommittee (Nov. 18, 2015) (on file with Committee staff). 

committee’s November 19, 2015, report 58 demonstrates, many such 

emails have been exchanged between Backpage employees during 

the time period covered by the subpoena. Indeed, by the company’s 

own admission,59 a significant majority of Backpage employees are 

engaged in the review of adult advertisements; it is therefore highly likely that the company has more than twenty internal pages 

relevant to the review of adult advertisements. 

Not only has Backpage failed to produce responsive documents, 

but it has also failed to describe them in a privilege log that would 

enable the Subcommittee to assess individualized objections to producing them. A privilege log is required by the subpoena’s terms, 

and the failure to produce one despite the Subcommittee’s repeated 

requests is further evidence of the company’s default.60 In addition, 

by Backpage’s own admission, it did not conduct a ‘‘complete 

search’’ of its records for responsive documents, claiming that to be 

required to do so would be ‘‘constitutionally inappropriate.’’ 61 Indeed, Backpage counsel was unable to tell the Subcommittee which 

data sources or custodian email accounts, if any, the company 

searched for responsive documents. By all indications, Backpage 

produced a self-selected subset of documents to support a pretense 

of cooperation, and nothing more. 

In addition to Mr. Ferrer’s failure to produce documents responsive to the Subcommittee’s subpoena, he also defaulted on his obligation to appear personally before the Subcommittee at the November 19, 2015, hearing. On November 16, 2015—three days before 

the hearing—Backpage attorneys informed the Subcommittee that 

Mr. Ferrer would decline to answer questions based on a First 

Amendment objection and his Fifth Amendment privilege against 

self-incrimination.62 In the same letter, Backpage requested that 

the Subcommittee waive Mr. Ferrer’s personal appearance. The 

Subcommittee promptly rejected the request.63

On November 18, 2015, the day before the hearing, counsel for 

Backpage informed the Subcommittee that Mr. Ferrer was out of 

the country on ‘‘important international business travel’’ and would 

therefore not appear.64 Mr. Ferrer subsequently failed to appear 

before the Subcommittee at the November 19, 2015, hearing. 

C. Objections to the subpoena 

Throughout the Subcommittee’s dealings with Mr. Ferrer and 

Backpage, the company has argued that most of the document requests in the subpoena were impermissible under the First Amendment. In particular, Backpage objected that ‘‘First Amendment tensions’’ inherent in requesting information from a ‘‘publisher’’ counVerDate Sep 11 2014 07:35 Mar 03, 2016 Jkt 059008 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR214.XXX SR214

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65Letter from Backpage to Subcommittee (Oct. 23, 2015) (on file with Committee staff). 66 NAACP v. Alabama, 357 U.S. 449 (1958) 67 United States v. Rumely, 345 U.S. 41, 42 (1953). 68See NAACP, 357 U.S. at 463. 69Subcommittee Ruling, Nov. 3, 2015 (on file with Committee staff). 70 Cf. Arcara v. Cloud Books, Inc, 478 U.S. 697, 707 (1986) (‘‘[T]he First Amendment is not 

implicated by the enforcement of a public health regulation of general application against the 

physical premises in which respondents happen to sell books.’’). 71Subcommittee Ruling at 7–10, Nov. 3, 2015 (on file with Committee staff). 72S. Res. 73 § 12(e)(1)(D), 114th Cong. 73 Id. at § 12(e)(1)(C). 74See 18 U.S.C. §§ 1581–1592. 75See 18 U.S.C. § 1961(1). 76See generally Mark Latonero, supra n.13. 

seled in favor of reading the Subcommittee’s authorizing resolution 

not to encompass the power to issue the October 1 subpoena.65

In its objections, Backpage relied principally on cases in which 

courts have invalidated investigative demands for information 

about disfavored political dissenters—for example, Alabama seeking the identities of NAACP members in the 1950s, 66 or a House 

committee trying to discover who is reading ‘‘books of a particular 

political tendentiousness.’’ 67 Although Backpage asserted that several items in the subpoena violate the First Amendment, it did not 

attempt to show either (i) that any request for documents sought 

information that infringed recognized First Amendment rights; or 

(ii) that any such request was not supported by an adequate legislative interest—as required to sustain a First Amendment objection 

in this context.68

After carefully considering the proffered objections, the Chairman and Ranking Member overruled them in a detailed ruling 

dated November 3, 2015.69 Unlike the cases cited by Backpage, in 

which investigative demands were used to further the official suppression of ideas, the Subcommittee’s subpoena infringed no First 

Amendment rights. And unlike the demands for membership lists 

60 years ago, the October 1 subpoena proactively instructed 

Backpage to redact any personally identifying information of its 

users. Finally, the mere fact that Backpage is a publisher of commercial speech does not immunize it from legitimate investigations 

into the unprotected, unlawful activity that undisputedly also occurs on its facilities.70

The Chairman and Ranking Member also overruled Backpage’s 

jurisdictional objection, finding that the investigation fit squarely 

within the Subcommittee’s authorizing resolution.71 As noted 

above, the Subcommittee is authorized to investigate ‘‘all other aspects of crime’’ within the United States that affect the ‘‘national 

health, welfare, and safety,’’ 72 as well as ‘‘organized criminal activity which may operate in or otherwise utilize the facilities of interstate or international commerce.’’ 73 Human trafficking is a federal 

crime.74 Importantly, Congress has specifically recognized human 

trafficking as an activity of organized crime; the Trafficking Victims Protection Reauthorization Act of 2003 declared that human 

trafficking offenses are predicates to liability under RICO.75 And 

the Internet, an important facility of interstate commerce, has become an increasingly central marketplace for human trafficking in 

the United States.76 The Subcommittee is therefore empowered to 

investigate how individuals utilize the Internet, including commercial sex advertising websites like Backpage.com, to further their ilVerDate Sep 11 2014 07:35 Mar 03, 2016 Jkt 059008 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR214.XXX SR214

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77Subcommittee Ruling at 15–18, Nov. 3, 2015 (on file with Committee staff). 78 Id. at 19. 79Letter from Backpage to Subcommittee (Nov. 24, 2015) (on file with Committee staff). 80Letter from Backpage to Subcommittee (Nov. 16, 2015) (on file with Committee staff). 81 Id. 82 Id. 83Subcommittee Report, Recommendation to Enforce a Subpoena Issued to the CEO of 

Backpage.com, LLC, (Nov. 19, 2015), available at http://www.hsgac.senate.gov/subcommittees/ 

investigations/hearings/human-trafficking-investigation. 

licit trafficking schemes, as well as examine the mechanisms 

websites can use to prevent such abuse of interstate facilities. 

The Chairman and Ranking Member further rejected Backpage’s 

entirely unexplained contention that the document requests in the 

October 1 subpoena were not pertinent to a proper investigation.77

The Subcommittee’s ruling articulated clearly why each request relates to its efforts to understand online sex trafficking, what companies like Backpage can do to prevent it (and may be doing to facilitate it), and what further steps the government might take to 

combat it. Having considered and rejected Backpage’s objections as 

unfounded, the Chairman and Ranking Member ordered and directed Mr. Ferrer to comply with the subpoena by November 12, 

2015.78

Despite the ruling dismissing his objections, Mr. Ferrer has continued to defy the Subcommittee’s lawful process. After Mr. 

Ferrer’s failure to appear on November 19, 2015, Backpage attorneys wrote in a November 24, 2015, letter that it was standing by 

its First Amendment, overbreadth, and pertinence objections to the 

subpoena.79 The company’s lawyers had previously stated that the 

company’s submissions of information 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.’’ 80 Instead, Backpage 

took the position that even ‘‘to be required to conduct such a search 

and review’’ would be ‘‘constitutionally inappropriate.’’ 81 Backpage 

encouraged the Subcommittee to ‘‘present[] this issue to the courts 

for resolution’’ by invoking the statutory mechanism for civil enforcement of Senate subpoenas.82 The Subcommittee, through the 

present report prepared pursuant to § 288d, is taking the necessary 

action to enable Senate Legal Counsel to file such an action. 

In an attempt to focus on information of highest priority, the 

Subcommittee is only seeking to enforce Requests One, Two, and 

Three of the subpoena. The Subcommittee has obtained sufficient 

information responsive to the remaining requests—Four, Five, Six, 

Seven, and Eight—from either third-party sources or Backpage 

itself. 

By contrast, Requests One, Two, and Three, concern the moderation practices at the core of the Subcommittee’s inquiry, as evidenced by the Staff Report that examined Backpage’s screening 

and editing practices using information obtained from third parties.83 By Backpage’s own admission, the screening of adult advertisements is a key function of its business. And the Subcommittee 

has information, in the form of emails from third parties, indicating that Backpage possesses significant records responsive to 

these requests. Nevertheless, Mr. Ferrer has withheld those 

records based on a vague and undeveloped First Amendment claim. 

The Subcommittee therefore seeks authorization to obtain from the 


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district court an order directing Mr. Ferrer’s compliance with the 

Subcommittee’s October 1, 2015, subpoena. 

D. Comparative effectiveness of a civil action or invoking inherent 

contempt 

The Subcommittee has considered the effectiveness of a civil action to enforce the Subcommittee’s subpoena compared to an immediate referral to the United States Department of Justice for criminal prosecution. Although the Subcommittee continues to consider 

whether to refer Mr. Ferrer’s failure to comply with the subpoena 

and failure to appear at the November 19 hearing for criminal 

prosecution, the Subcommittee has concluded that a civil action is 

the most effective and expeditious means to enforce the subpoena. 

In a civil action under 28 U.S.C. § 1365, the Subcommittee would 

apply to the United States District Court for the District of Columbia for an order requiring Mr. Ferrer to produce the subpoenaed 

documents. If the district court determines that Mr. Ferrer has no 

valid reason to refuse, the court would direct him to produce the 

subpoenaed documents. Disobedience of that order would subject 

Mr. Ferrer to sanctions to induce compliance. Mr. Ferrer could free 

himself of sanctions by producing the subpoenaed documents. 

In a criminal referral under 2 U.S.C. §§ 192–194, the Senate 

would direct the president pro tempore to certify to the U.S. Attorney for the District of Columbia the facts concerning the witness’s 

refusal to produce the subpoenaed documents. If convicted, the witness could receive a sentence of up to one year in prison and a 

$100,000 fine. 

The Subcommittee and Committee recommend that the Senate 

proceed at this time with a civil action to enforce the Subcommittee’s subpoena to Mr. Ferrer. The Subcommittee has a continuing 

interest in obtaining the subpoenaed documents as part of its ongoing investigation into sex trafficking. That goal is best advanced by 

the civil remedy—an order to produce—rather than the purely punitive remedies available through criminal prosecution. In addition, 

the Subcommittee believes a civil enforcement action will be more 

expeditious. The Subcommittee has an interest in speedy adjudication of Mr. Ferrer’s legal obligations so that it may proceed with 

its investigation and potential future hearings or reports in the 

current Congress. Such fact-finding is urgently needed for potential 

legislation in this important area. The Subcommittee notes, however, that its recommendation to pursue a civil enforcement action 

at this time does not preclude a later determination to refer the 

matter to the Department of Justice for criminal prosecution of Mr. 

Ferrer for contempt of Congress. 

IV. LEGISLATIVE HISTORY

The Committee considered the original resolution at a business 

meeting on February 10, 2016. With a majority of the Members of 

the Committee present, constituting a quorum under Committee 

Rules for the purpose of reporting measures, matters or recommendations, the Committee ordered the original resolution reported favorably by a roll call vote of 15 in favor and none opposed. 

Members voting in the affirmative were: Ron Johnson (R–WI), 

John McCain (R–AZ), Rob Portman (R–OH), Rand Paul (R–KY), 

James Lankford (R–OK), Kelly Ayotte (R–NH), Joni Ernst (R–IA), 


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Ben Sasse (R–NE), Thomas R. Carper (D–DE), Claire McCaskill 

(D–MO), Jon Tester (D–MT), Tammy Baldwin (D–WI), Heidi 

Heitkamp (D–ND), Cory A. Booker (D–NJ), and Gary C. Peters (D– 

MI). For the record only, Senator Michael B. Enzi (R–WY) voted 

‘‘aye’’ by proxy. There were no votes cast in the negative. 

Æ 


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