II 

Calendar No. 275 

117TH CONGRESS 

2D SESSION S. 2710 

To promote competition and reduce gatekeeper power in the app economy, 

increase choice, improve quality, and reduce costs for consumers. 

IN THE SENATE OF THE UNITED STATES 

AUGUST 11 (legislative day, AUGUST 10), 2021 

Mr. BLUMENTHAL (for himself, Mrs. BLACKBURN, Ms. KLOBUCHAR, Mr. 

RUBIO, Ms. LUMMIS, Mr. BOOKER, Mr. GRAHAM, Mr. KENNEDY, Ms. 

HIRONO, Mr. HAWLEY, and Mr. DURBIN) introduced the following bill; 

which was read twice and referred to the Committee on the Judiciary 

FEBRUARY 17, 2022 

Reported by Mr. DURBIN, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To promote competition and reduce gatekeeper power in the 

app economy, increase choice, improve quality, and reduce costs for consumers. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Open App Markets 

5 Act’’. 


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1 SEC. 2. DEFINITIONS. 

2 In this Act: 

3 (1) APP.—The term ‘‘App’’ means a software 

4 application or electronic service that may be run or 

5 directed by a user on a computer, a mobile device, 

6 or any other general purpose computing device. 

7 (2) APP STORE.—The term ‘‘App Store’’ means 

8 a publicly available website, software application, or 

9 other electronic service that distributes Apps from 

10 third-party developers to users of a computer, a mo11 bile device, or any other general purpose computing 

12 device. 

13 (3) COVERED COMPANY.—The term ‘‘Covered 

14 Company’’ means any person that owns or controls 

15 an App Store for which users in the United States 

16 exceed 50,000,000. 

17 (4) DEVELOPER.—The term ‘‘developer’’ means 

18 a person that owns or controls an App or an App 

19 Store. 

20 (5) IN-APP PAYMENT SYSTEM.—The term ‘‘In21 App Payment System’’ means an application, serv22 ice, or user interface to process the payments from 

23 users of an App. 

24 (6) NON-PUBLIC BUSINESS INFORMATION.— 

25 The term ‘‘non-public business information’’ means 

26 non-public data that is— 


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1 (A) derived from a developer or an App or 

2 App Store owned or controlled by a developer, 

3 including interactions between users and the 

4 App or App Store of the developer; and 

5 (B) collected by a Covered Company in the 

6 course of operating an App Store or providing 

7 an operating system. 

8 SEC. 3. PROTECTING A COMPETITIVE APP MARKET. 

9 (a) EXCLUSIVITY AND TYING.—A Covered Company 

10 shall not— 

11 (1) require developers to use an In-App Pay12 ment System owned or controlled by the Covered 

13 Company or any of its business partners as a condi14 tion of being distributed on an App Store or acces15 sible on an operating system; 

16 (2) require as a term of distribution on an App 

17 Store that pricing terms or conditions of sale be 

18 equal to or more favorable on its App Store than the 

19 terms or conditions under another App Store; or 

20 (3) take punitive action or otherwise impose 

21 less favorable terms and conditions against a devel22 oper for using or offering different pricing terms or 

23 conditions of sale through another In-App Payment 

24 System or on another App Store. 


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1 (b) INTERFERENCE WITH LEGITIMATE BUSINESS

2 COMMUNICATIONS.—A Covered Company shall not impose 

3 restrictions on communications of developers with the 

4 users of the App through an App or direct outreach to 

5 a user concerning legitimate business offers, such as pric6 ing terms and product or service offerings. 

7 (c) NON-PUBLIC BUSINESS INFORMATION.—A Cov8 ered Company shall not use non-public business informa9 tion derived from a third-party App for the purpose of 

10 competing with that App. 

11 (d) INTEROPERABILITY.—A Covered Company that 

12 controls the operating system or operating system configu13 ration on which its App Store operates shall allow and pro14 vide the readily accessible means for users of that oper15 ating system to— 

16 (1) choose third-party Apps or App Stores as 

17 defaults for categories appropriate to the App or 

18 App Store; 

19 (2) install third-party Apps or App Stores 

20 through means other than its App Store; and 

21 (3) hide or delete Apps or App Stores provided 

22 or preinstalled by the App Store owner or any of its 

23 business partners. 

24 (e) SELF-PREFERENCING IN SEARCH.— 


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1 (1) IN GENERAL.—A Covered Company shall 

2 not provide unequal treatment of Apps in an App 

3 Store through unreasonably preferencing or ranking 

4 the Apps of the Covered Company or any of its busi5 ness partners over those of other Apps. 

6 (2) CONSIDERATIONS.—Unreasonably 

7 preferencing— 

8 (A) includes applying ranking schemes or 

9 algorithms that prioritize Apps based on a cri10 terion of ownership interest by the Covered 

11 Company or its business partners; and 

12 (B) does not include clearly disclosed ad13 vertising. 

14 (f) OPEN APP DEVELOPMENT.—Access to operating 

15 system interfaces, development information, and hardware 

16 and software features shall be provided to developers on 

17 a timely basis and on terms that are equivalent or func18 tionally-equivalent to the terms for access by similar Apps 

19 or functions provided by the Covered Company or to its 

20 business partners. 

21 SEC. 4. PROTECTING THE SECURITY AND PRIVACY OF 

22 USERS. 

23 (a) IN GENERAL.—Subject to section (b), a Covered 

24 Company shall not be in violation of a subsection of sec25 tion 3 for an action that is— 


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1 (1) necessary to achieve user privacy, security, 

2 or digital safety; 

3 (2) taken to prevent spam or fraud; or 

4 (3) taken to prevent a violation of, or comply 

5 with, Federal or State law. 

6 (b) REQUIREMENTS.—Section (a) shall only apply if 

7 the Covered Company establishes by clear and convincing 

8 evidence that the action described is— 

9 (1) applied on a demonstrably consistent basis 

10 to Apps of the Covered Company or its business 

11 partners and to other Apps; 

12 (2) not used as a pretext to exclude, or impose 

13 unnecessary or discriminatory terms on, third-party 

14 Apps, In-App Payment Systems, or App Stores; and 

15 (3) narrowly tailored and could not be achieved 

16 through a less discriminatory and technically pos17 sible means. 

18 SEC. 5. ENFORCEMENT. 

19 (a) ENFORCEMENT.— 

20 (1) IN GENERAL.—The Federal Trade Commis21 sion, the Attorney General, and any attorney general 

22 of a State subject to the requirements in paragraph 

23 (4) shall enforce this Act in the same manner, by 

24 the same means, and with the same jurisdiction, 

25 powers, and duties as though all applicable terms 


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1 and provisions of the Federal Trade Commission Act 

2 (15 U.S.C. 41 et seq.) or the Clayton Act (15 U.S.C. 

3 12 et seq.), as appropriate, were incorporated into 

4 and made a part of this Act. 

5 (2) UNFAIR METHODS OF COMPETITION.—A 

6 violation of this Act shall also constitute an unfair 

7 method of competition under section 5 of the Fed8 eral Trade Commission Act (15 U.S.C. 5). 

9 (3) FEDERAL TRADE COMMISSION INDE10 PENDENT LITIGATION AUTHORITY.—If the Federal 

11 Trade Commission has reason to believe that a Cov12 ered Company violated this Act, the Federal Trade 

13 Commission may commence a civil action, in its own 

14 name by any of its attorneys designated by it for 

15 such purpose, to recover a civil penalty and seek 

16 other appropriate relief in a district court of the 

17 United States against the covered platform operator. 

18 (4) PARENS PATRIAE.—Any attorney general of 

19 a State may bring a civil action in the name of such 

20 State for a violation of this Act as parens patriae on 

21 behalf of natural persons residing in such State, in 

22 any district court of the United States having juris23 diction of the defendant, and may secure any form 

24 of relief provided for in this section. 

25 (b) SUITS BY DEVELOPERS INJURED.— 


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1 (1) IN GENERAL.—Any developer who shall be 

2 injured by reason of anything forbidden in this Act 

3 may sue therefor in any district court of the United 

4 States in the district in which the defendant resides 

5 or is found or has an agent, without respect to the 

6 amount in controversy, and shall recover threefold 

7 the damages by him sustained, and the cost of suit, 

8 including a reasonable attorney’s fee. The court may 

9 award under this subsection, pursuant to a motion 

10 by such developer promptly made, simple interest on 

11 actual damages for the period beginning on the date 

12 of service of such developer’s pleading setting forth 

13 a claim under this Act and ending on the date of 

14 judgment, or for any shorter period therein, if the 

15 court finds that the award of such interest for such 

16 period is just in the circumstances. In determining 

17 whether an award of interest under this subsection 

18 for any period is just in the circumstances, the court 

19 shall consider only— 

20 (A) whether such developer or the opposing 

21 party, or either party’s representative, made 

22 motions or asserted claims or defenses so lack23 ing in merit as to show that such party or rep24 resentative acted intentionally for delay, or oth25 erwise acted in bad faith; 


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1 (B) whether, in the course of the action in2 volved, such developer or the opposing party, or 

3 either party’s representative, violated any appli4 cable rule, statute, or court order providing for 

5 sanctions for dilatory behavior or otherwise pro6 viding for expeditious proceedings; and 

7 (C) whether such developer or the opposing 

8 party, or either party’s representative, engaged 

9 in conduct primarily for the purpose of delaying 

10 the litigation or increasing the cost thereof. 

11 (2) INJUNCTIVE RELIEF.—Any developer shall 

12 be entitled to sue for and have injunctive relief, in 

13 any court of the United States having jurisdiction 

14 over the parties, against threatened loss or damage 

15 by a violation of this Act, when and under the same 

16 conditions and principles as injunctive relief against 

17 threatened conduct that will cause loss or damage is 

18 granted by courts of equity, under the rules gov19 erning such proceedings, and upon the execution of 

20 proper bond against damages for an injunction im21 providently granted and a showing that the danger 

22 of irreparable loss or damage is immediate, a pre23 liminary injunction may issue. In any action under 

24 this paragraph in which the plaintiff substantially 


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1 prevails, the court shall award the cost of suit, in2 cluding a reasonable attorney’s fee, to such plaintiff. 

3 SEC. 6. RULE OF CONSTRUCTION. 

4 Nothing in this Act shall be construed to limit any 

5 authority of the Attorney General or the Federal Trade 

6 Commission under the antitrust laws (as defined in the 

7 first section of the Clayton Act (15 U.S.C. 12)), the Fed8 eral Trade Commission Act (15 U.S.C. 41 et seq.), or any 

9 other provision of law or to limit the application of any 

10 law. 

11 SEC. 7. SEVERABILITY. 

12 If any provision of this Act, or the application of such 

13 a provision to any person or circumstance, is held to be 

14 unconstitutional, the remaining provisions of this Act, and 

15 the application of the provision held to be unconstitutional 

16 to any other person or circumstance, shall not be affected 

17 thereby. 

18 SECTION 1. SHORT TITLE. 

19 This Act may be cited as the ‘‘Open App Markets Act’’. 

20 SEC. 2. DEFINITIONS. 

21 In this Act: 

22 (1) APP.—The term ‘‘app’’ means a software ap23 plication or electronic service that may be run or di24 rected by a user on a computer, a mobile device, or 

25 any other general purpose computing device. 


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1 (2) APP STORE.—The term ‘‘app store’’ means a 

2 publicly available website, software application, or 

3 other electronic service that distributes apps from 

4 third-party developers to users of a computer, a mo5 bile device, or any other general purpose computing 

6 device. 

7 (3) COVERED COMPANY.—The term ‘‘covered 

8 company’’ means any person that owns or controls an 

9 app store for which users in the United States exceed 

10 50,000,000. 

11 (4) DEVELOPER.—The term ‘‘developer’’ means a 

12 person that owns or controls an app or an app store. 

13 (5) IN-APP PAYMENT SYSTEM.—The term ‘‘in14 app payment system’’ means an application, service, 

15 or user interface to manage billing or process the pay16 ments from users of an app. 

17 (6) NONPUBLIC BUSINESS INFORMATION.—The 

18 term ‘‘nonpublic business information’’ means non19 public data that is— 

20 (A) derived from a developer or an app or 

21 app store owned or controlled by a developer, in22 cluding interactions between users and the app 

23 or app store of the developer; and 


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1 (B) collected by a covered company in the 

2 course of operating an app store or providing an 

3 operating system. 

4 SEC. 3. PROTECTING A COMPETITIVE APP MARKET. 

5 (a) EXCLUSIVITY AND TYING.—A covered company 

6 shall not— 

7 (1) require developers to use or enable an in-app 

8 payment system owned or controlled by the covered 

9 company or any of its business partners as a condi10 tion of the distribution of an app on an app store or 

11 accessible on an operating system; 

12 (2) require as a term of distribution on an app 

13 store that pricing terms or conditions of sale be equal 

14 to or more favorable on its app store than the terms 

15 or conditions under another app store; or 

16 (3) take punitive action or otherwise impose less 

17 favorable terms and conditions against a developer for 

18 using or offering different pricing terms or conditions 

19 of sale through another in-app payment system or on 

20 another app store. 

21 (b) INTERFERENCE WITH LEGITIMATE BUSINESS

22 COMMUNICATIONS.—A covered company shall not impose 

23 restrictions on communications of developers with the users 

24 of an app of the developer through the app or direct out25 reach to a user concerning legitimate business offers, such 


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1 as pricing terms and product or service offerings. Nothing 

2 in this subsection shall prohibit a covered company from 

3 providing a user the option to offer consent prior to the 

4 collection and sharing of the data of the user by an app. 

5 (c) NONPUBLIC BUSINESS INFORMATION.—A covered 

6 company shall not use nonpublic business information de7 rived from a third-party app for the purpose of competing 

8 with that app. 

9 (d) INTEROPERABILITY.—A covered company that con10 trols the operating system or operating system configura11 tion on which its app store operates shall allow and provide 

12 readily accessible means for users of that operating system 

13 to— 

14 (1) choose third-party apps or app stores as de15 faults for categories appropriate to the app or app 

16 store; 

17 (2) install third-party apps or app stores 

18 through means other than its app store; and 

19 (3) hide or delete apps or app stores provided or 

20 preinstalled by the app store owner or any of its busi21 ness partners. 

22 (e) SELF-PREFERENCING IN SEARCH.— 

23 (1) IN GENERAL.—A covered company shall not 

24 provide unequal treatment of apps in an app store 

25 through unreasonably preferencing or ranking the 


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1 apps of the covered company or any of its business 

2 partners over those of other apps in organic search re3 sults. 

4 (2) CONSIDERATIONS.—Unreasonably 

5 preferencing— 

6 (A) includes applying ranking schemes or 

7 algorithms that prioritize apps based on a cri8 terion of ownership interest by the covered com9 pany or its business partners; and 

10 (B) does not include clearly disclosed adver11 tising. 

12 (f) OPEN APP DEVELOPMENT.—A covered company 

13 shall provide access to operating system interfaces, develop14 ment information, and hardware and software features to 

15 developers on a timely basis and on terms that are equiva16 lent or functionally equivalent to the terms for access by 

17 similar apps or functions provided by the covered company 

18 or to its business partners. 

19 SEC. 4. PROTECTING THE SECURITY AND PRIVACY OF 

20 USERS. 

21 (a) IN GENERAL.— 

22 (1) NO VIOLATION.—Subject to section (b), a cov23 ered company shall not be in violation of section 3 for 

24 an action that is— 


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1 (A) necessary to achieve user privacy, secu2 rity, or digital safety; 

3 (B) taken to prevent spam or fraud; 

4 (C) necessary to prevent unlawful infringe5 ment of preexisting intellectual property; or 

6 (D) taken to prevent a violation of, or com7 ply with, Federal or State law. 

8 (2) PRIVACY AND SECURITY PROTECTIONS.—In 

9 paragraph (1), the term ‘‘necessary to achieve user 

10 privacy, security, or digital safety’’ includes— 

11 (A) allowing an end user to opt in, and 

12 providing information regarding the reasonable 

13 risks, prior to enabling installation of the third14 party apps or app stores; 

15 (B) removing malicious or fraudulent apps 

16 or app stores from an end user device; 

17 (C) providing an end user with the tech18 nical means to verify the authenticity and origin 

19 of third-party apps or app stores; and 

20 (D) providing an end user with option to 

21 limit the collection sharing of the data of the 

22 user with third-party apps or app stores. 

23 (b) REQUIREMENTS.—Subsection (a) shall only apply 

24 if the covered company establishes by a preponderance of 

25 the evidence that the action described in that subsection is— 


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1 (1) applied on a demonstrably consistent basis 

2 to— 

3 (A) apps of the covered company or its busi4 ness partners; and 

5 (B) other apps; 

6 (2) not used as a pretext to exclude, or impose 

7 unnecessary or discriminatory terms on, third-party 

8 apps, in-app payment systems, or app stores; and 

9 (3) narrowly tailored and could not be achieved 

10 through a less discriminatory and technically possible 

11 means. 

12 SEC. 5. ENFORCEMENT. 

13 (a) ENFORCEMENT.— 

14 (1) IN GENERAL.—The Federal Trade Commis15 sion, the Attorney General, and any attorney general 

16 of a State subject to the requirements in paragraph 

17 (3) shall enforce this Act in the same manner, by the 

18 same means, and with the same jurisdiction, powers, 

19 and duties as though all applicable terms and provi20 sions of the Federal Trade Commission Act (15 

21 U.S.C. 41 et seq.), the Sherman Act (15 U.S.C. 1 et 

22 seq.), the Clayton Act (15 U.S.C. 12 et seq.), and 

23 Antitrust Civil Process Act (15 U.S.C. 1311 et seq.), 

24 as appropriate, were incorporated into and made a 

25 part of this Act. 


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1 (2) FEDERAL TRADE COMMISSION INDEPENDENT

2 LITIGATION AUTHORITY.—If the Federal Trade Com3 mission has reason to believe that a covered company 

4 violated this Act, the Federal Trade Commission may 

5 commence a civil action, in its own name by any of 

6 its attorneys designated by it for such purpose, to re7 cover a civil penalty and seek other appropriate relief 

8 in a district court of the United States against the 

9 covered company. 

10 (3) PARENS PATRIAE.—Any attorney general of 

11 a State may bring a civil action in the name of such 

12 State for a violation of this Act as parens patriae on 

13 behalf of natural persons residing in such State, in 

14 any district court of the United States having juris15 diction of the defendant, and may secure any form of 

16 relief provided for in this section. 

17 (b) SUITS BY DEVELOPERS INJURED.— 

18 (1) IN GENERAL.—Except as provided in para19 graph (3), any developer injured by reason of any20 thing forbidden in this Act may sue therefor in any 

21 district court of the United States in the district in 

22 which the defendant resides or is found or has an 

23 agent, without respect to the amount in controversy, 

24 and shall recover threefold the damages by the devel25 oper sustained and the cost of suit, including a reaVerDate Sep 11 2014 01:38 Feb 18, 2022 Jkt 029200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6203 E:\BILLS\S2710.RS S2710

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1 sonable attorney’s fee. The court may award under 

2 this paragraph, pursuant to a motion by such devel3 oper promptly made, simple interest on actual dam4 ages for the period beginning on the date of service of 

5 the pleading of the developer setting forth a claim 

6 under this Act and ending on the date of judgment, 

7 or for any shorter period therein, if the court finds 

8 that the award of such interest for such period is just 

9 in the circumstances. In determining whether an 

10 award of interest under this paragraph for any pe11 riod is just in the circumstances, the court shall con12 sider only— 

13 (A) whether the developer or the opposing 

14 party, or either party’s representative, made mo15 tions or asserted claims or defenses so lacking in 

16 merit as to show that such party or representa17 tive acted intentionally for delay or otherwise 

18 acted in bad faith; 

19 (B) whether, in the course of the action in20 volved, the developer or the opposing party, or ei21 ther party’s representative, violated any applica22 ble rule, statute, or court order providing for 

23 sanctions for dilatory behavior or otherwise pro24 viding for expeditious proceedings; and 


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1 (C) whether the developer or the opposing 

2 party, or either party’s representative, engaged 

3 in conduct primarily for the purpose of delaying 

4 the litigation or increasing the cost thereof. 

5 (2) INJUNCTIVE RELIEF.—Except as provided in 

6 paragraph (3), any developer shall be entitled to sue 

7 for and have injunctive relief, in any court of the 

8 United States having jurisdiction over the parties, 

9 against threatened loss or damage by a violation of 

10 this Act, when and under the same conditions and 

11 principles as injunctive relief against threatened con12 duct that will cause loss or damage is granted by 

13 courts of equity, under the rules governing such pro14 ceedings, and upon the execution of proper bond 

15 against damages for an injunction improvidently 

16 granted and a showing that the danger of irreparable 

17 loss or damage is immediate, a preliminary injunc18 tion may issue. In any action under this paragraph 

19 in which the plaintiff substantially prevails, the court 

20 shall award the cost of suit, including a reasonable 

21 attorney’s fee, to such plaintiff. 

22 (3) FOREIGN STATE-OWNED ENTERPRISES.—A 

23 developer of an app that is owned by, or under the 

24 control of, a foreign state may not bring an action 

25 under this subsection. 


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1 SEC. 6. REPORTING. 

2 Not later than 3 years after the date of enactment of 

3 this Act, the Federal Trade Commission, the Comptroller 

4 General of the United States, and the Antitrust Division 

5 of the Department of Justice shall each separately review 

6 and provide an in-depth analysis of the impact of this Act 

7 on competition, innovation, barriers to entry, and con8 centrations of market power or market share after the date 

9 of enactment of this Act. 

10 SEC. 7. RULE OF CONSTRUCTION. 

11 Nothing in this Act may be construed— 

12 (1) to limit— 

13 (A) any authority of the Attorney General 

14 or the Federal Trade Commission under the 

15 antitrust laws (as defined in the first section of 

16 the Clayton Act (15 U.S.C. 12), the Federal 

17 Trade Commission Act (15 U.S.C. 41 et seq.), or 

18 any other provision of law; or 

19 (B) the application of any law; 

20 (2) to require— 

21 (A) a covered company to provide service 

22 under a hardware or software warranty for 

23 damage caused by third-party apps or app stores 

24 installed through means other than the app store 

25 of the covered company; or 


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1 (B) customer service for the installation or 

2 operation of third-party apps or app stores de3 scribed in subparagraph (A); 

4 (3) to prevent an action taken by a covered com5 pany that is reasonably tailored to protect the rights 

6 of third parties under section 106, 1101, 1201, or 

7 1401 of title 17, United States Code, or rights action8 able under sections 32 or 43 of the Act entitled ‘‘An 

9 Act to provide for the registration and protection of 

10 trademarks used in commerce, to carry out the provi11 sions of certain international conventions, and for 

12 other purposes’’, approved July 5, 1946 (commonly 

13 known as the ‘‘Lanham Act’’ or the ‘‘Trademark Act 

14 of 1946’’) (15 U.S.C. 1114, 1125), or corollary State 

15 law; 

16 (4) to require a covered company to license any 

17 intellectual property, including any trade secrets, 

18 owned by or licensed to the covered company; 

19 (5) to prevent a covered company from asserting 

20 preexisting rights of the covered company under intel21 lectual property law to prevent the unlawful use of 

22 any intellectual property owned by or duly licensed 

23 to the covered company; or 

24 (6) to require a covered company to interoperate 

25 or share data with persons or business users that— 


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1 (A) are on any list maintained by the Fed2 eral Government by which entities are identified 

3 as limited or prohibited from engaging in eco4 nomic transactions as part of United States 

5 sanctions or export control regimes; or 

6 (B) have been identified by the Federal Gov7 ernment as national security, intelligence, or law 

8 enforcement risks. 

9 SEC. 8. SEVERABILITY. 

10 If any provision of this Act, or the application of such 

11 a provision to any person or circumstance, is held to be 

12 unconstitutional, the remaining provisions of this Act, and 

13 the application of such provisions to any person or cir14 cumstance shall not be affected thereby. 

15 SEC. 9. EFFECTIVE DATE. 

16 This Act shall take effect on the date that is 180 days 

17 after the date of enactment of this Act. 


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Calendar No. 275 

117TH CONGRESS 

2D SESSION S. 2710 

A BILL 

To promote competition and reduce gatekeeper 

prove quality, and reduce costs for consumers. power in the app economy, increase choice, imFEBRUARY 17, 2022 

Reported with an amendment 


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