Senate Passes Portman Resolution to Hold Backpage.com in Contempt of Congress

First Time in More Than 20 Years Senate Has Voted to Authorize Contempt

Washington, D.C. – Today, U.S. Senator Rob Portman (R-Ohio) announced that his resolution to hold Backpage.com in civil contempt of Congress has unanimously passed the Senate by a vote of 96-0. In their role as Chairman and Ranking Member of the Senate’s Permanent Subcommittee on Investigations, Portman and Senator Claire McCaskill (D-Mo.) issued a subpoena to Backpage.com for documents about the company’s business practices, particularly how it screens advertisements for warning signs of sex trafficking.  Because Backpage has refused to comply with that subpoena, Portman & McCaskill introduced a Senate resolution to hold the company in civil contempt and force Backpage to turn over withheld documents.

Portman’s full remarks can be found here and excerpts of his prepared remarks are below.

“Mr. President, I rise in support of S. Res. 377—a resolution to enforce a subpoena of the Permanent Subcommittee on Investigations, which I chair, against Backpage.com and its Chief Executive Officer, Carl Ferrer.  For nearly a year now, Sen. McCaskill, the Ranking Member, and I have conducted a bipartisan investigation into the scourge of human trafficking on the Internet — with a focus on sex trafficking involving children.

“In the last five years, the National Center for Missing and Exploited Children (NCMEC) reported an over 800% increase in reports of suspected child sex trafficking — an increase the organization has found to be ‘directly correlated to the increased use of the Internet to sell children for sex.’

“In other words, the destructive crime of sex slavery has moved from the street corner to your smart phone.  An adult can now shop for underage trafficking victims from their computer screen.  And sex traffickers are well aware that sex advertising sites like Backpage.com offer them a quick and easy-to-use marketplace to sell children and coerced adults.

“Here’s how the National Center for Missing and Exploited Children described this growing problem at a hearing I chaired late last year:

“‘Online classified ad sites such as Backpage.com . . . allow[] [sex traffickers] to remain anonymous, test out new markets, attempt to evade public or law enforcement detection, and easily locate customers to consummate their sale of children for sex. Online child sex trafficking also enables traffickers to easily update an existing ad with a new location and quickly move a child to another geographic location where there are more customers seeking to purchase a child for rape or sexual abuse.’

“As the Co-Chair of the Senate Caucus to End Human Trafficking, I have spent many hours with those dedicated to fighting this crime and those victimized by it. For victims, the toll of sex trafficking is measured in stolen childhoods and painful trauma. For traffickers, it’s measured in dollars—and often a lot of dollars. It’s a problem that I believe should command attention in Congress.

“The aim of my and Senator McCaskill’s investigation is straightforward: We want to understand how lawmakers, law enforcement, and even private businesses can more effectively combat this serious crime that thrives on an online black market.

“Traffickers have found refuge and new customers through websites that specialize in advertising “ordinary” prostitution and lawful escort services. A business called Backpage.com is the market leader in that industry, with annual revenues in excess of $130 million last year.  Backpage has a special niche: According to one industry analysis in 2013, eight out of every ten dollars spent on online commercial sex advertising in the United States goes to Backpage.

“The public record indicates that Backpage sits at the center of the online black market for sex trafficking.  The National Center for Missing and Exploited Children has reported that of the suspected child trafficking reports it receives from the public, 71% involve Backpage.  According to a leading anti-trafficking organization called Shared Hope International, ‘service providers working with child sex trafficking victims have reported that between 80% and 100% of their clients have been bought and sold on Backpage.com.’ In fact, Shared Hope has documented more than 400 cases in 47 states of children being sex trafficked on Backpage.com.

“Despite all this, Backpage executives say they are committed to combatting sex trafficking. The company claims that its internal procedures for reviewing and screening advertisements “lead the industry.”  That claim led us to ask them a simple question: ‘What are those industry-leading procedures?’  If they are so effective in the fight against human trafficking, Congress and other policymakers ought to know about them.

“That’s why Senator McCaskill and I asked Backpage for documents about their ad-screening practices – a process Backpage calls “moderation” – along with other information about their business practices.  The company refused to cooperate.

“We then took the next step and issued a subpoena to Backpage’s CEO, Carl Ferrer, requiring him to produce documents about Backpage’s moderation practices, efforts to combat human trafficking, and financial information.  The company essentially told us to get lost.  Wrapping itself in a frivolous First Amendment argument, Backpage refuses to produce documents about its business practices—and has told us that the company refuses even to look for those documents, a clear sign of willful contempt for the Senate’s process.

“Senator McCaskill and I gave Backpage every opportunity to cooperate in good faith with our investigation.  We carefully considered its objections to the subpoena and issued a 19-page opinion overruling those objections and directing Backpage to comply.  It continued to stonewall.

“But in the meantime, our investigation did not stop.  Our investigators and lawyers found a number of third parties and other witnesses who had information about Backpage’s business practices and procedures.  Along the way, we discovered that from 2010–2012, Backpage outsourced much of its screening and moderation to workers in India.  We obtained emails from the California company that managed those India-based moderators, including emails with Backpage’s CEO and other executives.

“They are deeply troubling.  Our investigation showed that Backpage “edits” advertisements before posting them, by removing certain words, phrases, or images.  For instance, they might remove a word or image that makes clear that sexual services are being offered for money.  And then they would post this “sanitized” version of the ad.  While this editing changes nothing about the underlying transaction, it tends to conceal the evidence of illegality.  In other words, Backpage’s editing procedures, far from being an effective anti-trafficking measure, only served to sanitize the ads of illegal content to an outside viewer.

“And we still don’t know the full extent of Backpage’s editing practices—how much evidence of illegal conduct or even sale of minors has been concealed—because they won’t tell us.

“And then there’s this email:  It tells the moderators what to do if they have doubts about whether a girl advertised on Backpage is underage.  Quote:  “IF IN DOUBT ABOUT UNDERAGE: the process for now should be to accept the ad …. However, if you ever find anything that you feel IS UNDERAGE AND is more than just suspicious, you can delete the ad[.]”  “ONLY DELETE IF YOU REALLY VERY SURE PERSON IS UNDERAGE.”

“To be clear, we didn’t get this information from Backpage because it refuses to provide it.  Backpage claims emails just like these are protected by the First Amendment—which is nonsense.

“In November, Senator McCaskill and I released a bipartisan staff report about our investigation, and held a hearing to consider what to do about Backpage’s noncompliance.  By the way, despite being under subpoena, Backpage’s CEO refused to show up for that hearing—something Senator McCaskill and I plan to deal with at a later time.

“But others did show up for our hearing.  We heard testimony from law enforcement and from the National Center for Missing and Exploited Children, confirming what we had come to suspect:  Backpage is not really an ally in the fight against human trafficking.  It just profits from it.

“The general counsel of the National Center told us that it had had dozens of meetings with Backpage about improving the company’s anti-trafficking measures.  But those meetings ended when they concluded that Backpage “was not engaging in good faith efforts to deter the selling and buying of children for sex on its website.”  The National Center told us, quote: “[D]espite Backpage’s assertions, it was adopting and publicizing only carefully selected sound practices, while resisting recommended substantive measures that would protect more children from being sold for sex . . . on Backpage.com.”

“For example, the National Center noted that Backpage did not “hash” its photos — a very low-cost technique for comparing digital images that could help identify missing children.  The National Center also noted that Backpage has more stringent rules to post an ad to sell a pet, a motorcycle, or a boat, than it does to sell a person.  A user is required to submit a verified phone number for selling a hamster, but not when placing ads that could involve the sale of a child for sexual abuse.  Think about that.

“The human toll of all this is staggering.  It is hard to overstate the traumatic effect of a minor being advertised on a daily basis on a site like Backpage.com.  In a recent lawsuit brought against Backpage in Boston, the plaintiff was a 15-year-old girl who had been raped over 1,000 times as a result of being advertised on Backpage.com.  1,000 times.

In the course of our investigation, we have also heard some similarly heart-wrenching tales.  For example, Backpage receives reports from families pleading with it to take down ads of their children.  Here is one such email sent to Backpage that the National Center shared with us:

“Your website has ads featuring our 16 year old daughter [ ], posing as an escort. – She is being pimped out by her old [boyfriend], and she is underage. – I have emailed the ad multiple times using your website, but have gotten no response. . . . – For God’s sake, she’s only 16….Stuff like this shouldn’t be allowed to happen.”

“Even after receiving such reports, the National Center tells us Backpage often does not remove the ad.  Instead, the ad remains live on the website, which allows the abuse of that child to continue.

“You see, it is sometimes hard to square Backpage’s public statements about its business practices with the reality on the ground.  For example, the National Center recently was searching for a child who went missing – and is still missing – and found that she appeared in a sex advertisement on Backpage.  That is sadly common.  But what made this case even more incredible was that the Backpage ad actually contained a missing child poster of that same child.  That poster had the child’s real name, real age, real picture, and the date she went missing.  The other pictures in the ad included topless photos.  We’d certainly like to know what supposedly market-leading screening and moderation procedures missed that one.

“And that, Mr. President, is exactly why we need the documents that we subpoenaed from Backpage.  Without them, we cannot really evaluate how sex trafficking has proliferated in these online marketplaces, and how Congress can fight this crime.  To be clear, our purpose is absolutely not to shut down any particular company, or deter protected advertising for lawful services.

“Nor are we even looking for information about individual advertisers.  In fact, Senator McCaskill and I have made clear that Backpage should redact from any documents they send us the personally identifying information about its users.  What we are interested in is facts that will enable smart legislation on a critical issue of public concern. 

“This civil contempt resolution — S. Res. 377 — will enable us to get those facts.  It was reported out of the full committee unanimously, and I want to thank Sen. Johnson, our chairman, and Sen. Carper, the ranking member, and all our colleagues for their unwavering support for this investigation.

“This will be the first time in more than 20 years that the Senate has had to enforce a subpoena in court.  I cannot think of a time it has been more justified.  The Permanent Subcommittee on Investigations has a long history of investigating crime that infiltrates interstate commerce and affects our Nation’s health and safety.  In our era, the crime of human trafficking has become a scourge, and Congress needs to know everything it can about how to fight it.  No investigation of that subject could omit Backpage.com, which the National Association of Attorneys General has described as a “hub” of “human trafficking, especially the trafficking of minors.”

“Before I yield the floor, I’d like to ask unanimous consent to enter a number of statements of support in the record from the nation’s leading anti-trafficking organizations, including the National Center for Missing & Exploited Children.

Mr. President, I urge my colleagues to vote yes on this important resolution and vindicate the authority of the Congress to obtain information necessary for sound legislation to protect the most vulnerable among us.”       

With estimated annual revenues of more than $150 million, Backpage is a market leader in commercial-sex advertising and has been linked to hundreds of reported cases of sex trafficking, including trafficking of children.  In a bipartisan staff report issued four months ago, the Subcommittee revealed evidence that Backpage has had a practice of editing advertisements before they are posted by deleting certain words and phrases, which likely served to conceal illegality.  The subpoena seeks more information about that practice, but Backpage has refused to turn over documents.

The Subcommittee’s bipartisan report is here. A link to the November 19 hearing is here.

###