Case: 1:15-cv-06340 Document #: 201 Filed: 09/15/17 Page 1 of 10 PageID #:4742

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Backpage.com, LLC,
plaintiff,
v.
Thomas J. Dart, Sheriff of Cook County,
Illinois,
defendant.

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No. 15 C 6340
Hon. John J. Tharp, Jr.

MOTION FOR LEAVE TO ISSUE SUBPOENAS
Thomas J. Dart, Sheriff of Cook County, Illinois, in his official capacity, by his
undersigned Special Assistant State’s Attorneys, requests that this Court enter an order pursuant
to Federal Rule of Civil Procedure 16(b) granting leave to propound subpoenas to discover
evidence proving that Backpage has been and is engaged in criminal activities, including the
solicitation of prostitutes and creation of advertisements for prostitution, and in support of this
motion states:
Introduction
This July, THE WASHINGTON POST and NBC NEWS each published explosive
articles reporting that Backpage is actively recruiting prostitutes and even creating ads for them
to post on its website. Copies of these articles are attached as Exhibits A and B, respectively.1

1

The audio and video content can be accessed online at https://www.washingtonpost.com/
local/public-safety/backpage-has-always-claimed-it-doesnt-control-sex-related-ads-newdocuments-show-otherwise/2017/07/10/ b3158ef6-553c-11e7b38e35fd8e0c288f_story.
html?utm_term=.ec5807c52693 and http://www.nbcnews.com/news/us-news/backpage-criticsfind-surprise-ammunition-philippines-raid-n778221.

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While “Backpage has always claimed it doesn’t control sex-related ads, [n]ew documents show
otherwise.” Exhibit A. Backpage has been “aggressively soliciting and creating sex-related
ads.” Id. (emphasis added).
The articles explain that the discovery of incriminating documents showing
Backpage’ s solicitation and ad creation came about accidentally following the seizure of
computers from one of Backpage’s Philippine agents in an unrelated civil lawsuit, but the fact
that the revelations were accidental does not take away from their explosive character. The
seized documents, if authentic and the reporting about them correct, prove that the essential
premise of the original and amended complaints—that Backpage does not provide any of the
content of the ads soliciting prostitution—is not well grounded in fact. Backpage has been lying
to this Court, e.g.:
Users provide all the content for ads they post on Backpage.com using an
automated interface. Backpage.com does not dictate or require any
content. (ECF No. 1, ¶ 19)
Backpage.com does not dictate or require users to post any content.
Instead, users provide all the content for ads they post using an automated
interface. (Ferrer Declaration, ECF No. 6, ¶ 4.)
lying to the Seventh Circuit:
Users provide all content for their ads; Backpage.com hosts the forum for
their speech. (Backpage’s opening brief at 3.)
lying to many attorneys general throughout the nation, for example, Missouri’s:
Individuals post on Backpage.com using an automated interface, providing
all content for ads they post (e.g., titles, text and images). Backpage.com
does not dictate or require any content, although it does block and remove
content that violates the website's rules or may be improper.
(Backpage.com v. Hawley, No. 17-CV-1951, 2017 WL 3283402, ECF No.
1, ¶ 21 (E.D. Mo. filed July 11, 2017))

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and lying to scores of civil judges hearing personal injury claims of women and children
victimized by Backpage’s abominable business practices or, in some instances, wrongful death
claims of their estates. Backpage also misled the U.S. Supreme Court (page 3 of its opposition to
the Sheriff’s certiorari petition) and the U.S. Senate Permanent Subcommittee on Investigations
(counsel’s October 23, 2015 letter to Senators Portman and McCaskill, ECF No. 130-10 at p. 11)
by implying that only third-party users provided information content for ads placed on its
website.
Based on the date range of a few of the incriminating documents that are available
from the docket in Backpage’s case against Missouri Attorney General Hawley, it appears that
Backpage was sanitizing ads of their criminal content in 2015 and 2016, the same time it was
telling this Court that it was not. The few emails which the Missouri Attorney General attached
to his filings do not provide a date range for when Backpage began creating ads for prostitutes it
solicited from other websites, but it is reasonable to assume that these will be of like date. If it is
established that Backpage itself authored ads for prostitutes and child traffickers to post on its
platform, as reported by the press, it can have no immunity under the Communications Decency
Act.
As defendant previously informed this Court, evidence exists of Backpage’s
illegal actions through its sanitization of ads and the promotion of juvenile prostitution, such as
the Red Beauty Sting operation.2 See ECF No. 155 at 5—6 & ECF No. 161 at 8—11. In that

In addition, Special Agent Brian Fichtner of the California Department of Justice led a
three-year criminal investigation into Backpage and its owner-operators. He submitted a sworn
statement that “BACKPAGE’s escort services section essentially operates as an online brothel”
in support of the issuance of an arrest warrant for them in a now-pending criminal action titled
People v. Ferrer, Lacey and Larkin, No. 16 FE 019224 (Superior Court of Sacramento County,
California) (filed September 26, 2016). A copy of that criminal complaint and Special Agent
Fichtner’s affidavit are attached hereto as Exhibits C & D, respectively.
2

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sting operation, an investigator at the Cook County Sheriff’s Office had submitted a paid
advertisement to Backpage, but rather than rejecting the advertisement that clearly promoted
child prostitution, Backpage scrubbed the ad of its blatant criminality, scrubbed the age reference
(“14—18”) and scrubbed the remark about “just graduating from grade school.” Backpage knew
this advertisement was prostituting a juvenile, yet re-wrote the ad so as to hide the illegal activity
from law enforcement officials, thus promoting the illegal act so that Backpage could profit from
the criminal undertaking. Documents collected during the Senate investigation show that
“sanitization” was not an isolated event but part of a deliberate, orchestrated criminal
undertaking by Backpage. U.S. Senate Permanent Subcommittee on Investigations,
Backpage.com’s Knowing Facilitation of Online Sex Trafficking, Staff Report. Available at:
https://www.hsgac.senate.gov/subcommittees/investigations/reports. (Accessed: 9/7/2017.)
Defendant now seeks leave to obtain through subpoena the very documents
discussed in the two news articles—documents which, if authentic, corroborate the Red Beauty
Sting and prove that Backpage has encouraged and participated in illegal activities, including the
creation of advertisements that would destroy its Communications Decency Act defense that it is
merely a web platform posting the advertisements of others. Specifically, defendant seeks leave
to serve the subpoena attached as Exhibit E to the litigants who first assembled the documents.
However, because there are pending motions and substantial briefing directed to what is the
appropriate scope of discovery in this matter at this time, defendant is seeking leave to propound
this subpoena pursuant to Federal Rule of Civil Procedure 16(b).
Procedural History
On June 8, 2016 the Court granted the parties’ joint motion to extend the period
for fact discovery, striking the previously-set June 15, 2016 date and indicating that the “Court

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will set a further status hearing regarding the discovery schedule upon ruling on the pending
discovery motions.” ECF No. 164. Then, on August 2, 2016, Backpage filed a motion to renew
its request for summary judgment (ECF No. 169), reintroducing its earlier request for summary
judgment (ECF No. 124) that previously had been denied without prejudice (ECF No. 137).
Defendant responded to the motion arguing, in part, that the motion should be denied because
defendant should be allowed discovery to prove that Backpage was participating in criminal
activity, which is not constitutionally protected. (ECF Nos. 178 & 184.) The motion is fully
briefed and awaiting a ruling.
On August 9, 2016 Backpage filed its first amended complaint abandoning its
claims for monetary damages. ECF No. 173. On September 20, 2016, defendant filed a motion
to dismiss because, as a result of its abandonment of monetary damage claims, Backpage cannot
state a claim against Thomas J. Dart individually. The motion to dismiss is fully briefed and
awaiting a ruling.
On February 7, 2017, the Court sua sponte raised the issue of whether the case is
now moot as a result of Backpage itself shutting down the Adult Services section of its website,
and invited the parties to submit briefs on the issue. ECF No. 195. In response, on February 21,
2017, defendant initially filed a motion to dismiss for lack of subject matter jurisdiction on the
grounds that Backpage recently had ceased operating its adult services website hosting platform,
rendering the injunctive prayers which are the sole remaining claims asserted by Backpage moot,
and depriving the Court of an actual case or controversy within the meaning of article III of the
United States Constitution and Federal Rule of Civil Procedure 57. ECF No. 197. The same
day, Backpage filed its “Opposition to Suggestion of Mootness” arguing that the case was not
moot. ECF No. 196.

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On March 7, 2017 defendant amended his position on mootness because it had
come to his attention that prostitution ads had not disappeared from Backpage.com, they only
migrated from the Adult Services section to the Personals section. ECF No. 200. Backpage
acutely is aware of this inasmuch as it then increased the advertising fees for the Personals
section in order to profit from the move.3 Id. As Backpage has not left the business of soliciting
prostitution, as it now appears, the controversy is hardly moot.
Argument
“Under Rule 26, a district court has broad discretion in matters relating to
discovery. Rule 26 permits the discovery of any ‘nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of the case.’” Simon v. Northwestern.
Univ., No. 1:15-CV-1433, 2017 WL 467677, at *2 (N.D. Ill. Feb. 3, 2017) (citations omitted).
“Prior to limiting discovery, the court should consider the totality of the circumstances, weighing
the value of the material sought against the burden of providing it, and taking into account
society's interest in furthering the truth-seeking function in the particular case before the court.”
Id. (citations and quotations omitted). Whether the material is admissible is a question for
another day, but under this liberal standard, defendant is entitled to obtain this discovery.
At this point, defendant has not reviewed the documents and does not know
everything they contain. However, based on the news reports and quotes therein from an
individual who reviewed the documents, and the small sample of documents that were attached
to the Missouri Attorney General’s filings, the seized documents likely prove that Backpage
deliberately has engaged in illegal activity—a conclusion which strips it of first amendment

THE WASHINGTON POST similarly reports that “[m]ost ads on Backpage are free … [b]ut
ads in the ‘dating’ section cost at least $3, and more for posting in more than one city or
periodically moving the ad to the top of the list.” Ex. A.
3

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protection—and even authored criminal ads—a conclusion which strips it of any possible
immunity under the Communications Decency Act.
If Backpage was engaging in illegal behavior, there can be no prior restraint claim
against defendant for encouraging Visa and MasterCard to stop helping Backpage profit from its
illegal activity. Specifically, when the preliminary injunction was on appeal, Judge Posner held:
Visa and MasterCard were victims of government coercion aimed
at shutting up or shutting down Backpage's adult section (more
likely aimed at bankrupting Backpage—lest the ads that the sheriff
doesn't like simply migrate to other sections of the website), when it
is unclear that Backpage is engaged in illegal activity, and if it is not
then the credit card companies cannot be accomplices and should
not be threatened as accomplices by the sheriff and his staff.
Backpage.com, LLC v. Dart, 807 F.3d 229, 233 (7th Cir. 2015) (emphasis added). Judge Posner
acknowledged that illegality on the part of Backpage was key to this case. This Court is
obligated to follow that acknowledgment, it cannot choose one part of the mandate to abide over
another. Whether or not “Backpage is engaged in illegal activity” is the sine qua non of this
matter. 807 F.3d at 233.
When Judge Posner rendered his opinion, he was not working with a full
evidentiary record, and no actual discovery had taken place with respect to the limited
preliminary injunctive record. But since the time of Judge Posner’s opinion, the record in this
case has been supplemented with evidence of Backpage’s illegal activities, from the defendant’s
own Red Beauty sting operation, Agent Fichtner’s investigation, testimony and findings by the
U.S. Senate Permanent Subcommittee on Investigations, and most recently THE WASHINGTON
POST and NBC NEWS articles.
Importantly, the documents discussed in THE WASHINGTON POST and NBC NEWS
articles apparently prove that Backpage was actively soliciting and encouraging illegal

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advertisements on its website, indeed, scripting them. This goes well beyond the sanitization of
ads uncovered in the Red Beauty Sting, and unquestionably brings the actions of Backpage
outside of the protection of the Communications Decency Act, which provides that “[n]o
provider or user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider.” Backpage.com, LLC, 807
F.3d at 233. At the time Judge Posner wrote his opinion, he stated, in analyzing the
Communications Decency Act, that “Backpage is an intermediary between the advertisers of
adult services and visitors to Backpage's website.” Backpage.com, LLC, 807 F.3d at 234. He
compared Backpage to a newspaper “that carries an advertisement for ‘escort services’” and
“make[s] money from that activity,” but is not liable for the “content of what it transmits”
because another provides the content. But since the time Judge Posner wrote his opinion, it has
now become clear, and the documents sought through this subpoena likely demonstrate that,
Backpage is no longer shielded by the Communications Decency Act because it is not an
intermediary, it is actually the provider of illegal content on its website and thus can be held
liable for the prostitution ads that it has encouraged and in some cases itself authored. See, e.g.,
Huon v. Denton, 841 F.3d 733, 742—43 (7th Cir. 2016) (no immunity for website platform that
solicited or created information content).
Moreover, permitting defendant to obtain these documents furthers society's
interest in the truth-seeking function of the Court. In a case involving allegations regarding
sexual slavery, prostitution and the sexual exploitation of children, society’s interest compels the
conclusion that defendant should be permitted to the discovery he seeks. See, e.g., Simon v.
Northwestern University, No. 1:15-CV-1433, 2017 WL 467677, at *2 (N.D. Ill. Feb. 3, 2017) (in
applying the factors articulated in F.R.C.P. 26, the Court found “the importance of the issues at

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stake” to be “extremely high” in a case involving murder, false imprisonment and “a high profile
journalism professor accused of employing unethical investigatory tactics at the behest of one of
the nation's most prestigious universities”).
Finally, there is another important societal interest calling for the discovery of
incriminating documents seized in the Philippines besides the public importance in rooting out
sexual slavery and the sexual exploitation of children. It is important for this Court to preserve
its resources for the redress of legitimate grievances, not trumped up ones. Defendant reasonably
expects the Philippine evidence to show that Backpage itself is an information content provider
for ads soliciting the prostitution of minors. If that proves true—likely, as heralded by the Red
Beauty sting operation—then it will be difficult to measure the temerity required to have sought
Communications Decency Act immunity as a civil rights plaintiff in this Court. Its entire case
appears to be based on a false disclaimer of ad authorship, and Backpage’s deception has wasted
this Court’s resources and cost Cook County taxpayers attorneys’ fees defending a trumped up
first amendment claim needlessly. Backpage has trumpeted the absoluteness of the statutory
immunity available to it as a mere web platform, trumpeted it to state courts,4 district courts,5
circuit courts6 and the Senate,7 but in light of the recent revelations, it appears that the claim is

See, e.g., J.S. v. Village Voice Media Holdings, L.L.C., 184 Wash. 2d 95, 359 P.3d 714
(2015) (Appellants’ Opening Brief, 2013 WL 9582408 (Wash. App.) at *3).
4

5

See, e.g., Backpage.com, LLC v. Hawley, No. 17-CV-1951, 2017 WL 3283402 (E.D. Mo.
July 11, 2017) (Complaint, ¶¶ 20, 29 & 32); Backpage.com, LLC v. Lynch, 216 F. Supp. 3d 96,
105 (D.D.C. 2016) (Pl. Reply Br. at 3); Senate Permanent Subcommittee v. Ferrer, 199 F. Supp.
3d 125, 138 (D.D.C. 2016), vacated as moot sub nom. Ferrer v. Senate Permanent Subcommittee
on Investigations, 856 F.3d 1080 (D.C. Cir. 2016).
See, e.g., Ferrer v. Senate Permanent Subcommittee on Investigations, 856 F.3d 1080
(D.C. Cir. 2016) (Appellant’s Br. at 4).
6

See, e.g., Aug. 6, 2015 letter from Backpage.com counsel to Sens. Portman and
McCaskill at 1; Aug. 26, 2015 letter from Backpage.com counsel to Sens. Portman and
7

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without evidentiary support and never should have been made in the first place. The requested
discovery may compel the conclusion that the initial complaint, the amendment, numerous briefs
and the remarks of counsel to this Court are not well grounded in fact.
WHEREFORE, for the foregoing reasons, Sheriff Thomas J. Dart requests that
this motion for leave to serve a subpoena for documents be granted and this Court grant whatever
other relief this Court deems appropriate.
Respectfully submitted,
THOMAS J. DART,
Sheriff of Cook County, Illinois

By: /s/

Paul J. Kozacky
One of his attorneys

Paul J. Kozacky
Jerome R. Weitzel
Alastar S. McGrath
KOZACKY WEITZEL McGRATH, P.C.
55 West Monroe, 24th Floor
Chicago, Illinois 60603
312-696-0900

McCaskill at 1; Oct. 23, 2015 letter from Backpage.com counsel to Sens. Portman and
McCaskill, ECF No. 130-10 at p. 11 (all letters attached hereto as Exhibit F).
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