The battle between Backpage.com and Congress will escalate Thursday, when senators will vote on whether hold the commercial adult advertising website's chief executive in contempt for refusing to comply with a subpoena, BuzzFeed News has learned.
Senate Majority Leader Mitch McConnell's plan to call the vote is the latest in a back-and-forth that started after members of the Senate Subcommittee on Investigations say evidence was uncovered showing Backpage edited some ads by deleting certain words and phrases that "likely served to conceal illegality."
The top members of the committee, Rob Portman and Claire McCaskill, issued the subpoena in an effort to find out more about the editing process, including on how the website screens advertising submissions.
Backpage, however, has refused to comply with the subpoena, claiming it violates First Amendment protections.
Portman and McCaskill responded by successfully introducing a resolution to hold CEO Carl Ferrer and the company in contempt in an effort to force compliance.
“We launched this bipartisan investigation over 10 months ago to tackle the growing problem of sex trafficking on the internet. We have given Backpage.com every opportunity to comply with a lawful subpoena, but they have continued to stonewall,” Portman and McCaskill said in a joint statement.
Now the resolution moves to the Senate floor, and if passed, allow lawmakers to take Backpage to court and once again try to force the company to turn over the documents.
In a statement to BuzzFeed News, Backpage said it has been pushing for the Senate to let the courts first decide whether the subcommittee's request for documents is constitutional.
"For nine months, Backpage.com has respectfully, and repeatedly, asked the Senate to take the steps necessary to permit Backpage.com to obtain a review of the constitutional issues by judges, rather than by the same political figures who issued the subpoenas."
Voting to hold Ferrer in contempt will set the stage for the legal review, the company added.
"If the Senate now votes, as Backpage.com has long requested, to submit the issue to the courts, it will finally be authorizing the precise course of action the company has been urging for nine months. Backpage.com looks forward to a proper consideration of the important First Amendment constitutional issues by the judiciary — the branch of government charged with protecting the constitutional rights of all Americans."
Launched in 2004 as response to the rise of online classified sites like Craigslist, Backpage.com soon became the second largest personal advertising website. In 2014, original owners Village Voice Media sold the website to a Dutch holding company, but Ferrer stayed on as CEO.
The site has had its share of legal attacks over the years in which plaintiffs claimed the some of the ads in its "adult" section had links to human sex trafficking.
Most recently, in 2015, Cook County Sheriff Tom Dart in Illinois contacted Visa and MasterCard demanding that they stop allowing customers to use their cards to purchase ads on the site.
Within days, the companies complied. Backpage fought back and was ultimately granted an injunction that called for Dart and his office to cease its efforts to coerce companies not to do business with Backpage.
In a 2012 Seattle Times op-ed, Backpage’s general counsel, Liz McDougall, defended the company’s moderation policy and claimed that its presence on the internet made it the good ally in combating the epidemic of human trafficking.
"When traffickers use the Internet, especially in a financial transaction, they leave forensic footprints that create unprecedented tools to locate and rescue victims before they are exploited, and to investigate and convict pimps and their criminal networks," McDougall wrote. "A key to disrupting and eventually ending human trafficking via the World Wide Web is therefore an online-service-provider community — of businesses including Backpage — that aggressively monitors for and traces potential trafficking cases, and promptly reports to and cooperates with law enforcement."
Michael Hayes is a senior reporter for BuzzFeed News and is based in New York.
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