II 

117TH CONGRESS 

1ST 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, and Ms. KLOBUCHAR) introduced the following bill; which was read twice and referred to the Committee on the Judiciary 

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’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 

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

9 application or electronic service that may be run or 


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

2 or any other general purpose computing device. 

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

4 a publicly available website, software application, or 

5 other electronic service that distributes Apps from 

6 third-party developers to users of a computer, a mo7 bile device, or any other general purpose computing 

8 device. 

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

10 Company’’ means any person that owns or controls 

11 an App Store for which users in the United States 

12 exceed 50,000,000. 

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

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

15 Store. 

16 (5) IN-APP PAYMENT SYSTEM.—The term ‘‘In17 App Payment System’’ means an application, serv18 ice, or user interface to process the payments from 

19 users of an App. 

20 (6) NON-PUBLIC BUSINESS INFORMATION.— 

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

22 non-public data that is— 

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

24 App Store owned or controlled by a developer, 


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1 including interactions between users and the 

2 App or App Store of the developer; and 

3 (B) collected by a Covered Company in the 

4 course of operating an App Store or providing 

5 an operating system. 

6 SEC. 3. PROTECTING A COMPETITIVE APP MARKET. 

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

8 shall not— 

9 (1) require developers to use an In-App Pay10 ment System owned or controlled by the Covered 

11 Company or any of its business partners as a condi12 tion of being distributed on an App Store or acces13 sible on an operating system; 

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

15 Store that pricing terms or conditions of sale be 

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

17 terms or conditions under another App Store; or 

18 (3) take punitive action or otherwise impose 

19 less favorable terms and conditions against a devel20 oper for using or offering different pricing terms or 

21 conditions of sale through another In-App Payment 

22 System or on another App Store. 

23 (b) INTERFERENCE WITH LEGITIMATE BUSINESS

24 COMMUNICATIONS.—A Covered Company shall not impose 

25 restrictions on communications of developers with the 


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

2 a user concerning legitimate business offers, such as pric3 ing terms and product or service offerings. 

4 (c) NON-PUBLIC BUSINESS INFORMATION.—A Cov5 ered Company shall not use non-public business informa6 tion derived from a third-party App for the purpose of 

7 competing with that App. 

8 (d) INTEROPERABILITY.—A Covered Company that 

9 controls the operating system or operating system configu10 ration on which its App Store operates shall allow and pro11 vide the readily accessible means for users of that oper12 ating system to— 

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

14 defaults for categories appropriate to the App or 

15 App Store; 

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

17 through means other than its App Store; and 

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

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

20 business partners. 

21 (e) SELF-PREFERENCING IN SEARCH.— 

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

23 not provide unequal treatment of Apps in an App 

24 Store through unreasonably preferencing or ranking 


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1 the Apps of the Covered Company or any of its busi2 ness partners over those of other Apps. 

3 (2) CONSIDERATIONS.—Unreasonably 

4 preferencing— 

5 (A) includes applying ranking schemes or 

6 algorithms that prioritize Apps based on a cri7 terion of ownership interest by the Covered 

8 Company or its business partners; and 

9 (B) does not include clearly disclosed ad10 vertising. 

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

12 system interfaces, development information, and hardware 

13 and software features shall be provided to developers on 

14 a timely basis and on terms that are equivalent or func15 tionally-equivalent to the terms for access by similar Apps 

16 or functions provided by the Covered Company or to its 

17 business partners. 

18 SEC. 4. PROTECTING THE SECURITY AND PRIVACY OF 

19 USERS. 

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

21 Company shall not be in violation of a subsection of sec22 tion 3 for an action that is— 

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

24 or digital safety; 

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


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

2 with, Federal or State law. 

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

4 the Covered Company establishes by clear and convincing 

5 evidence that the action described is— 

6 (1) applied on a demonstrably consistent basis 

7 to Apps of the Covered Company or its business 

8 partners and to other Apps; 

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

10 unnecessary or discriminatory terms on, third-party 

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

12 (3) narrowly tailored and could not be achieved 

13 through a less discriminatory and technically pos14 sible means. 

15 SEC. 5. ENFORCEMENT. 

16 (a) ENFORCEMENT.— 

17 (1) IN GENERAL.—The Federal Trade Commis18 sion, the Attorney General, and any attorney general 

19 of a State subject to the requirements in paragraph 

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

21 the same means, and with the same jurisdiction, 

22 powers, and duties as though all applicable terms 

23 and provisions of the Federal Trade Commission Act 

24 (15 U.S.C. 41 et seq.) or the Clayton Act (15 U.S.C. 


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1 12 et seq.), as appropriate, were incorporated into 

2 and made a part of this Act. 

3 (2) UNFAIR METHODS OF COMPETITION.—A 

4 violation of this Act shall also constitute an unfair 

5 method of competition under section 5 of the Fed6 eral Trade Commission Act (15 U.S.C. 5). 

7 (3) FEDERAL TRADE COMMISSION INDE8 PENDENT LITIGATION AUTHORITY.—If the Federal 

9 Trade Commission has reason to believe that a Cov10 ered Company violated this Act, the Federal Trade 

11 Commission may commence a civil action, in its own 

12 name by any of its attorneys designated by it for 

13 such purpose, to recover a civil penalty and seek 

14 other appropriate relief in a district court of the 

15 United States against the covered platform operator. 

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

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

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

19 behalf of natural persons residing in such State, in 

20 any district court of the United States having juris21 diction of the defendant, and may secure any form 

22 of relief provided for in this section. 

23 (b) SUITS BY DEVELOPERS INJURED.— 

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

25 injured by reason of anything forbidden in this Act 


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1 may sue therefor in any district court of the United 

2 States in the district in which the defendant resides 

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

4 amount in controversy, and shall recover threefold 

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

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

7 award under this subsection, pursuant to a motion 

8 by such developer promptly made, simple interest on 

9 actual damages for the period beginning on the date 

10 of service of such developer’s pleading setting forth 

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

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

13 court finds that the award of such interest for such 

14 period is just in the circumstances. In determining 

15 whether an award of interest under this subsection 

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

17 shall consider only— 

18 (A) whether such developer or the opposing 

19 party, or either party’s representative, made 

20 motions or asserted claims or defenses so lack21 ing in merit as to show that such party or rep22 resentative acted intentionally for delay, or oth23 erwise acted in bad faith; 

24 (B) whether, in the course of the action in25 volved, such developer or the opposing party, or 


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1 either party’s representative, violated any appli2 cable rule, statute, or court order providing for 

3 sanctions for dilatory behavior or otherwise pro4 viding for expeditious proceedings; and 

5 (C) whether such developer or the opposing 

6 party, or either party’s representative, engaged 

7 in conduct primarily for the purpose of delaying 

8 the litigation or increasing the cost thereof. 

9 (2) INJUNCTIVE RELIEF.—Any developer shall 

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

11 any court of the United States having jurisdiction 

12 over the parties, against threatened loss or damage 

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

14 conditions and principles as injunctive relief against 

15 threatened conduct that will cause loss or damage is 

16 granted by courts of equity, under the rules gov17 erning such proceedings, and upon the execution of 

18 proper bond against damages for an injunction im19 providently granted and a showing that the danger 

20 of irreparable loss or damage is immediate, a pre21 liminary injunction may issue. In any action under 

22 this paragraph in which the plaintiff substantially 

23 prevails, the court shall award the cost of suit, in24 cluding a reasonable attorney’s fee, to such plaintiff. 


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1 SEC. 6. RULE OF CONSTRUCTION. 

2 Nothing in this Act shall be construed to limit any 

3 authority of the Attorney General or the Federal Trade 

4 Commission under the antitrust laws (as defined in the 

5 first section of the Clayton Act (15 U.S.C. 12)), the Fed6 eral Trade Commission Act (15 U.S.C. 41 et seq.), or any 

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

8 law. 

9 SEC. 7. 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 the provision held to be unconstitutional 

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

15 thereby. 

Æ 


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