The Senate Homeland Security and Governmental Affairs Committee unanimously approved a historic resolution Wednesday, holding the CEO of online classified ad site Backpage.com in contempt of Congress for failing to testify under subpoena last November on the website’s role as a prominent vehicle for child sex trafficking.
The full senate will now vote on the resolution. If they approve it, that would allow the Senate’s Legal Counsel to bring a suit in the U.S. District Court for the District of Columbia against Backpage.com CEO Carl Ferrer — an action the Senate hasn’t taken in 20 years.
According to Sen. Rob Portman, R-Ohio, who is leading the investigation as chairman of the Permanent Subcommittee on Investigations with ranking member Sen. Claire McCaskill, D-Mo., Backpage.com has outright refused to cooperate with the senators, even after the senators subpoenaed the company for documents on the business’ operations.
“Congress is of course interested in learning about effective strategies to prevent women and children from being sold for sexual abuse, but Backpage refuses to give us answers to legitimate questions,” Portman said during Wednesday’s meeting. “These are questions about their internal practices…How does their screening process work?”
Backpage.com has publicly described its screening process to combat the trafficking in the past, but according to committee members it won’t answer direct questions. FedScoop could not reach the online classified website for comment.
“What’s more is the company told us they won’t even look for the material. This is a clear sign they’re not dealing with us in clear faith,” Portman said. “The next logical step in our investigation is this civil contempt proceeding.”
The National Center for Missing and Exploited Children testified during the November hearing before the subcommittee that 71 percent of child sex trafficking reports to the center’s CyberTipline are connected to Backpage.com.
McCaskill, a former sex crimes prosecutor in Missouri, described her counterpart’s “calm resolve” in handling the resolution as “an antidote to how damn mad” she is.
“And everyone should be mad,” she said. “This is the height of arrogance and the height of thumbing one’s nose at the laws in this country.”
Sen. John McCain, R-Ariz., agreed with McCaskill that “this is a terrible issue. This is something that’s so terrible that we kind of shy away from it because of how awful it is,” he said. “This is an investigation that needs to be held, and without the testimony, I don’t see how we can move forward.”
McCain added that he doesn’t recall a time in his political career when a witness has refused to testify in this fashion. The last time it happened, his colleagues informed him, was in 1995, when the Special Committee to Investigate Whitewater Development Corporation and Related Matters recommended the Senate authorize a civil enforcement proceeding forcing William H. Kennedy, III to produce notes from a meeting with then-President Bill Clinton and wife Hillary involving their failed real-estate investment, known as the Whitewater Development Corporation, with associates in Arkansas in the late 1970s. The failed investment led to the eponymous scandal which dogged his entire presidency.
“If this is allowed to go un-responded to then why shouldn’t anybody just refuse to testify?” McCain asked. “So this is not only an important and compelling issue, it’s a matter of the responsibilities we have to the people of this country.”
The entirety of the committee agreed in a 15-0 roll call vote, and committee Chairman Ron Johnson, R-Wis., said he hopes the Senate floor will follow suit in quick and unanimous fashion “to show the strong support of the Senate to get to the bottom of this horrific activity that’s going unpunished right now.”
The House of Representatives passed a bill in 2014 called the Stop Advertising Victims of Exploitation (SAVE) Act, designed to stop Internet marketplaces that host advertisements for the commercial exploitation of minors. The bill, sponsored by Reps. Kristi Noem, R-S.D., and Ann Wagner, R-Mo., died in the Senate.
Backpage.com has claimed protection under the First Amendment’s freedom of speech in previous suits. A U.S. Circuit Court of Appeals upheld this defense late last year when it ruled in favor of Backpage.com’s lawsuit against the Cook County, Illinois, Sheriff’s Department for “pressured tactics” to shut the website down by pressuring credit card companies to stop processing sales of ad space on the website. Sheriff Thomas Dart alleged in a letter to the companies that the website “promote[s] prostitution and facilitate[s] online sex trafficking,” and within days Visa and MasterCard stopped processing sales for Backpage.com. The lower court ruled no First Amendment violation, but ultimately the decision was reversed on appeal.
Some argue, though, that Backpage.com should be limited in its First Amendment freedom of speech under Section 230 of the Communications Decency Act, which grants immunity to website operators from being liable for user-generated content. The Washington state Supreme Court ruled last year in favor of three young girls who claimed they were victims to sex trafficking on the website and argued the company was not immune to the CDA because it informs users how to craft successful ads.
The Electronic Frontier Foundation disagreed, calling the ruling “a dangerous precedent for innovation and online expression.”
Backpage.com’s refusal to cooperate with the Senate, though, is a very different scenario, and it won’t be able to hide from the Senate under the protection of the First amendment, McCaskill said.
“We’re not on a fishing expedition here. We are not violating anybody’s rights here,” she said. “We are using the law as the law is intended to be used. And we know that … today on Backpage, children are being trafficked for sex … I am disgusted that any company wouldn’t participate and cooperate in an investigation into the trafficking of children.”