Last week, the DC Circuit temporarily stayed an order enforcing a US Senate subpoena for records from the classified advertising site, Backpage.com, which has come under scrutiny for listing

sexual services. The case, Senate Permanent Subcommittee on Investigations v. Ferrer, arises from the subcommittee’s (PSI’s) investigation into interstate child sex trafficking. The case

comes the DC Circuit following Judge Rosemary Collyer’s opinion rejecting largely constitutional objections raised by Carl Ferrer, chief executive officer of Backpage.com, LLC. On the facts

as the court presents them, the PSI’s argument seems unassailable. Nevertheless, the dispute showcases important tensions between congressional oversight authority, cyber data protection,

finding, Senate Resolution 377, directs Senate Legal Counsel to “bring a civil action” in the PSI’s name against Ferrer. The vehicle for the litigation, Section 1365, Title 28, US code, is

an interesting statute that is specific to the Senate only.

Separation-of-powers considerations underlie some of Section 1365’s peculiarities. The statute commands that “the district court shall issue an order” enforcing Senate subpoenas. (Emphasis

added.) Federal courts would likely balk at the Senate’s mandatory issuance language as a requirement for a particular judicial action from a coordinate branch of government, but the opinion

suggests that the language does reflect the limited discretion the court has when acting on Section 1365’s jurisdictional authority.

Ferrer’s statutory jurisdictional argument also bumps against these interbranch sensitivities. PSI seeks judicial enforcement of three of the eight categories of material commanded by its

Oct. 1, 2015 subpoena. Ferrer argues Section 1365 does not establish jurisdiction for the district court to issue an order for partial enforcement of a Senate subpoena. Section 1365

prohibits, as a jurisdictional matter, judicial power to quash or modify a subpoena. It expressly disavows any federal court jurisdiction to “review, modify, suspend, terminate, or set

aside” any Senate subpoena. Judge Collyer rightly notes: “The statute strips this Court of its customary authority to modify or quash a subpoena.” (Opinion at 12.) It’s an all or nothing

proposition. Therefore, Ferrer argues, the court does not have the ability to look at a request for partial enforcement. 

The court, however, cites Section 1365’s legislative history, which “makes clear that the ‘the court’s jurisdiction is limited to the matter Congress brings before it, that is whether or not

to aid Congress is [sic] enforcing the subpoena or order.’” (Emphasis in Opinion.) Here, the court construes the three provisions the Senate wants enforced as the “matter Congress brings”

rather than the four corners of the subpoena. Judge Collyer describes the “very purpose of the statute…was to avoid judicial interference with Congress’s exercise of its constitutional

powers.” (Opinion at 12.)

Ferrer argues that the PSI’s subpoena does not support a valid legislative purpose and that the PSI lacked the authority to look into Backpage.com’s activities. The court, rightly, dispenses

with that argument. The committee has express Senate authority to investigate organized crime in interstate or international commerce in order to assess the need for adjustments to federal

law. Congressional oversight power of inquiry extends not just to review of existing laws and administration but potential areas of legislation.

The First Amendment and the Fifth Amendment Due Process Clause act as a limitation on congressional oversight power. One could see where an online information community could have valid

speech and associational concerns where a congressional investigation or surveillance intrudes. Moreover, the way a subpoena recipient has procedural and substantive rights to due process in

connection with Senate compulsory processes. Backpage.com, however, has a very steep climb to show a constitutional violation and fell far short before the district court on these facts.

I argue in the law review article Congressional Due Process that federal courts ought to do a minimum due process standards review akin to foreign recognition of foreign court judgments

before aiding Congress with subpoena enforcement. To me, that would be a principal criterion informing “whether or not to aid Congress in enforcing the subpoena.” However, on the facts as

presented in the opinion, the committee seems to have been responsible with Backgage.com stakeholder due process interests and sensitive to their civil liberties concerns. Most

significantly, PSI narrowed its requests and its subpoena specifically directed Backpage.com “not to include identifying information on any Backpage user or account holder.”

Ferrer joins Oversight Committee v. Holder (subsequently styled Lynch, the Fast and Furious congressional subpoena enforcement case), as a statement that federal district courts expect these

subpoena fights to be handled at the document-level rather than the category-level. See prior posts on the Fast and Furious litigation, here and here. Backpage.com has consistently raised

undue burden objections, which very well may have merit for an Internet-based company with millions of digital records. However, that is not really different than a normal burden associated

with civil litigation or a grand jury subpoena. As I note in Congressional Due Process, the chair of the congressional committee is the primary adjudicator on such objections, and as noted

above Section 1365 specifically prohibits judicial modification to relieve undue burden objections. I have some sympathy for that argument in the abstract, but the court notes that the PSI

took such concerns into account when narrowing some of its request. Backpage.com also blends the burden arguments with its First Amendment overbreadth argument. Per Ferrer, even having to

search for responsive records could violate First Amendment interests in protected speech.

The district court was having none of it. It admonishes Backpage.com throughout the opinion for failing to meet search obligations under the subpoena. “There is simply no legal or factual

support for the proposition that being required to search for responsive documents would abridge Mr. Ferrer’s protected freedoms of speech or press.” (Opinion at 20.) The court also

describes Backpage.com as “having failed to perform the customary duties associated with a subpoena.” (Opinion at 23.) The court also very clearly indicated that objections needed to be

lodged in traditional document-level privilege log to be submitted to the PSI. The court concludes Ferrer “not only…failed to articulate specific objections in a privilege log, but also

refused to conduct a full search for responsive documents.” To the court, even if there might be constitutional concerns raised by production of certain documents to PSI, in the absence of a

responsiveness search and privilege log, Backpage.com did not put the court in a position to address them.

The district court ultimately granted the PSI’s “Application to Enforce Subpoena Duces Tecum” within 10 days of the opinion (dated August 5). Now, the DC Circuit has stayed that order. The

administrative stay is designed “to give the court sufficient opportunity to consider the emergency motion for stay and should not be construed in any way as a ruling on the motion.” So far,

I have not been able to access Backpage.com’s motion on PACER. Senate counsel has to file the PSI’s response Friday afternoon.

Andy Wright (@AndyMcCanse) is Senior Fellow and Founding Editor of Just Security. He previously served as Associate Counsel to the President in the White House Counsel’s Office; and Staff

Director and Counsel to the national security subcommittee of the U.S. House Committee on Oversight and Government Reform. Wright is a Partner in the Washington office of K&L Gates.

DON'T MISS A THING. Stay up to date with Just Security curated newsletters:

Just Security provides expert analysis and informational resources on the issues that matter most—without paywalls, subscriptions, or ads. Just Security is an editorially independent,

non-partisan, daily digital law and policy journal housed in the Reiss Center on Law and Security at the New York University School of Law. Support Just Security in shaping a more informed,

just, and secure world by making a tax-deductible donation of any size through the NYU giving page, or becoming a sustaining supporter.