United States Court of Appeals, District of Columbia Circuit
March 3, 2017
from the United States District Court for the District of
Columbia (No. 1:16-mc-00621)
Corn-Revere argued the cause for appellant. With him on the
briefs were Ronald G. London, Robert D. Luskin, Stephen B.
Kinnaird, Jamie S. Gardner, Steven R. Ross, and Stanley M.
Jessica Ring Amunson and Joshua M. Parker were on the brief
for amici curiae DKT Liberty Project, et al. in support of
A. Chesley and David Boies were on the brief for amici curiae
Legal Momentum, et al. in support of appellee.
J. Llansó was on the brief for amici curiae Center for
Democracy & Technology and Electronic Frontier Foundation
in support of appellant.
E. Caballero, Assistant Counsel, Office of Senate Legal
Counsel, argued the cause for appellee. With him on the brief
were Patricia Mack Bryan, Senate Legal Counsel, Morgan J.
Frankel, Deputy Senate Legal Counsel, and Grant R. Vinik,
Assistant Senate Legal Counsel.
Before: Tatel, Srinivasan and Wilkins, Circuit Judges.
Ferrer, Chief Executive Officer of the online advertising
website Backpage.com, appeals two district court orders
directing him to produce various documents in response to a
subpoena issued by the Senate Permanent Subcommittee on
Investigations. During the pendency of this appeal, however,
Ferrer turned over some of the documents, and the
Subcommittee completed its investigation and issued its final
report. Given this, and given that the Subcommittee no longer
seeks to enforce the subpoena, it argues that the case has
become moot. Ferrer responds that the case remains live
because, according to him, this court can order the
Subcommittee to return, destroy, or refrain from publishing
the produced documents. We disagree. Because the relief
Ferrer seeks is barred by the separation of powers, including
the Speech or Debate Clause, the case is now moot.
first half of 2015, the Senate Permanent Subcommittee on
Investigations began examining "businesses that directly
or indirectly facilitate criminal sex trafficking conduct,
including trafficking in minors." S. Rep. No. 114- 214,
at 6 (2016). The Subcommittee suspected that online
advertisers were playing a central role in sex trafficking by
"providing . . . easily accessible forum[s] that match
buyers of sex with anonymous traffickers selling minors and
adults." Id. at 3. In particular, the
Subcommittee focused on Backpage.com, a large,
classified-advertising website that allows third-party users
to post their own ads. At that time, Backpage featured,
alongside run-of-the-mill categories like real estate, jobs,
and automobiles, a section dedicated to "adult"
services, which contained subcategories ranging from
"escorts" and "body rubs" to "adult
jobs." Subpoena Duces Tecum of Oct. 1, 2015. Ads in
those sections "typically consist[ed] of a headline, a
photo or photos, video, and a brief description of the
services being offered." S. Rep. No. 114- 214, at 4.
April 2015, the Subcommittee asked Backpage for an
explanation of its "moderation" procedures,
i.e., standards and policies Backpage says it uses
to "screen, block and remove [user-supplied] ads . . .
to guard against any form of human trafficking or child
exploitation." Letter from Steven R. Ross, Counsel to
Backpage.com to Sens. Portman and McCaskill (Oct. 23, 2015);
see S. Rep. No. 114-214, at 7. Backpage sent its
General Counsel to be interviewed by the Subcommittee, but
when the Subcommittee found her answers lacking in several
respects, it sent follow-up questions and requests for
information, all of which went unanswered.
7, 2015, the Subcommittee issued its first subpoena duces
tecum asking Backpage to produce a variety of documents.
Responding through counsel, the company argued that the
subpoena was overbroad and a per se violation of the First
Amendment. Although the Subcommittee offered to narrow the