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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2992 Reported in Senate (RS)]

<DOC>

                                                       Calendar No. 301
117th CONGRESS
  2d Session
                                S. 2992

  To provide that certain discriminatory conduct by covered platforms 
               shall be unlawful, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            October 18, 2021

 Ms. Klobuchar (for herself, Mr. Grassley, Mr. Durbin, Mr. Graham, Mr. 
   Blumenthal, Mr. Kennedy, Mr. Booker, Ms. Lummis, Ms. Hirono, Mr. 
  Warner, Mr. Hawley, and Mr. Daines) introduced the following bill; 
  which was read twice and referred to the Committee on the Judiciary

                             March 2, 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 provide that certain discriminatory conduct by covered platforms 
               shall be unlawful, and for other purposes.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``American Innovation and 
Choice Online Act''.</DELETED>

<DELETED>SEC. 2. UNLAWFUL CONDUCT.</DELETED>

<DELETED>    (a) Violation.--It shall be unlawful for a person 
operating a covered platform, in or affecting commerce, if it is shown, 
by a preponderance of the evidence, that the person has engaged in 
conduct that would--</DELETED>
        <DELETED>    (1) unfairly preference the covered platform 
        operator's own products, services, or lines of business over 
        those of another business user on the covered platform in a 
        manner that would materially harm competition on the covered 
        platform;</DELETED>
        <DELETED>    (2) unfairly limit the ability of another business 
        user's products, services, or lines of business to compete on 
        the covered platform relative to the covered platform 
        operator's own products, services, or lines of business in a 
        manner that would materially harm competition on the covered 
        platform; or</DELETED>
        <DELETED>    (3) discriminate in the application or enforcement 
        of the covered platform's terms of service among similarly 
        situated business users in a manner that may materially harm 
        competition on the covered platform.</DELETED>
<DELETED>    (b) Unlawful Conduct.--It shall be unlawful for a person 
operating a covered platform, in or affecting commerce, if it is shown, 
by a preponderance of the evidence, that the person has engaged in 
conduct that would--</DELETED>
        <DELETED>    (1) materially restrict or impede the capacity of 
        a business user to access or interoperate with the same 
        platform, operating system, hardware or software features that 
        are available to the covered platform operator's own products, 
        services, or lines of business that compete or would compete 
        with products or services offered by business users on the 
        covered platform;</DELETED>
        <DELETED>    (2) condition access to the covered platform or 
        preferred status or placement on the covered platform on the 
        purchase or use of other products or services offered by the 
        covered platform operator that are not part of or intrinsic to 
        the covered platform itself;</DELETED>
        <DELETED>    (3) use non-public data that are obtained from or 
        generated on the covered platform by the activities of a 
        business user or by the interaction of a covered platform user 
        with the products or services of a business user to offer, or 
        support the offering of, the covered platform operator's own 
        products or services that compete or would compete with 
        products or services offered by business users on the covered 
        platform;</DELETED>
        <DELETED>    (4) materially restrict or impede a business user 
        from accessing data generated on the covered platform by the 
        activities of the business user, or through an interaction of a 
        covered platform user with the business user's products or 
        services, such as by establishing contractual or technical 
        restrictions that prevent the portability of the business 
        user's data by the business user to other systems or 
        applications;</DELETED>
        <DELETED>    (5) unless necessary for the security or 
        functioning of the covered platform, materially restrict or 
        impede covered platform users from un-installing software 
        applications that have been preinstalled on the covered 
        platform or changing default settings that direct or steer 
        covered platform users to products or services offered by the 
        covered platform operator;</DELETED>
        <DELETED>    (6) in connection with any covered platform user 
        interface, including search or ranking functionality offered by 
        the covered platform, treat the covered platform operator's own 
        products, services, or lines of business more favorably 
        relative to those of another business user than they would be 
        treated under standards mandating the neutral, fair, and non-
        discriminatory treatment of all business users; or</DELETED>
        <DELETED>    (7) retaliate against any business user or covered 
        platform user that raises concerns with any law enforcement 
        authority about actual or potential violations of State or 
        Federal law.</DELETED>
<DELETED>    (c) Rule of Construction.--Subsections (a) and (b) shall 
not be construed to require a covered platform operator to divulge, 
license, or otherwise grant the use of the covered platform operator's 
intellectual property, trade or business secrets, or other confidential 
proprietary business processes to a business user.</DELETED>
<DELETED>    (d) Affirmative Defenses.--</DELETED>
        <DELETED>    (1) In general.--Subsection (a) shall not apply if 
        the defendant establishes by a preponderance of the evidence 
        that the conduct described in subsections (a) was narrowly 
        tailored, was nonpretextual, and was necessary to--</DELETED>
                <DELETED>    (A) prevent a violation of, or comply 
                with, Federal or State law;</DELETED>
                <DELETED>    (B) protect safety, user privacy, the 
                security of non-public data, or the security of the 
                covered platform; or</DELETED>
                <DELETED>    (C) maintain or enhance the core 
                functionality of the covered platform.</DELETED>
        <DELETED>    (2) Unlawful conduct.--Subsection (b) shall not 
        apply if the defendant establishes by a preponderance of the 
        evidence that the conduct described in subsection (b)--
        </DELETED>
                <DELETED>    (A) has not resulted in and would not 
                result in material harm to the competitive process by 
                restricting or impeding legitimate activity by business 
                users; or</DELETED>
                <DELETED>    (B) was narrowly tailored, could not be 
                achieved through less discriminatory means, was 
                nonpretextual, and was necessary to--</DELETED>
                        <DELETED>    (i) prevent a violation of, or 
                        comply with, Federal or State law;</DELETED>
                        <DELETED>    (ii) protect safety, user privacy, 
                        the security of non-public data, or the 
                        security of the covered platform; or</DELETED>
                        <DELETED>    (iii) maintain or enhance the core 
                        functionality of the covered 
                        platform.</DELETED>
<DELETED>    (e) Covered Platform Designation.--The Federal Trade 
Commission and Department of Justice may jointly, with concurrence of 
the other, designate a covered platform for the purpose of implementing 
and enforcing this Act. Such designation shall--</DELETED>
        <DELETED>    (1) be based on a finding that the criteria set 
        forth in clauses (i) through (iii) of subsection (h)(4) are 
        met;</DELETED>
        <DELETED>    (2) be issued in writing and published in the 
        Federal Register; and</DELETED>
        <DELETED>    (3) apply for 7 years from its issuance regardless 
        of whether there is a change in control or ownership over the 
        covered platform unless the Commission or the Department of 
        Justice removes the designation under subsection (f).</DELETED>
<DELETED>    (f) Removal of Covered Platform Designation.--The 
Commission or the Department of Justice shall--</DELETED>
        <DELETED>    (1) consider whether its designation of a covered 
        platform under subsection (e) should be removed prior to the 
        expiration of the 7-year period if the covered platform 
        operator files a request with the Commission or the Department 
        of Justice, which shows that the online platform no longer 
        meets the criteria set forth in clauses (i) through (iii) of 
        subsection (h)(4);</DELETED>
        <DELETED>    (2) determine whether to grant a request submitted 
        under paragraph 1 not later than 120 days after the date of the 
        filing of such request; and</DELETED>
        <DELETED>    (3) obtain the concurrence of the Commission or 
        the Department of Justice, as appropriate, before granting a 
        request submitted under paragraph (1).</DELETED>
<DELETED>    (g) Remedies.--The remedies provided in this subsection 
are in addition to, and not in lieu of, any other remedy available 
under Federal or State law.</DELETED>
        <DELETED>    (1) Civil penalty.--Any person who is found to 
        have violated subsections (a) or (b) shall be liable to the 
        United States or the Commission for a civil penalty, which 
        shall accrue to the United States Treasury, in an amount not 
        more than 15 percent of the total United States revenue of the 
        person for the period of time the violation occurred.</DELETED>
        <DELETED>    (2) Injunctions.--The Assistant Attorney General 
        of the Antitrust Division, the Commission, or the attorney 
        general of any State may seek, and the court may order, relief 
        in equity as necessary to prevent, restrain, or prohibit 
        violations of this Act.</DELETED>
        <DELETED>    (3) Repeat offenders.--If the fact finder 
        determines that a person has engaged in a pattern or practice 
        of violating this Act, the court shall consider requiring, and 
        may order, that the Chief Executive Officer, and any other 
        corporate officer as appropriate to deter violations of this 
        Act, forfeit to the United States Treasury any compensation 
        received by that person during the 12 months preceding or 
        following the filing of a complaint for an alleged violation of 
        this Act.</DELETED>
<DELETED>    (h) Definitions.--In this section:</DELETED>
        <DELETED>    (1) Antitrust laws.--The term ``antitrust laws'' 
        has the meaning given the term in subsection (a) of section 1 
        of the Clayton Act (15 U.S.C. 12).</DELETED>
        <DELETED>    (2) Business user.--The term ``Business User'' 
        means a person that utilizes or is likely to utilize the 
        covered platform for the sale or provision of products or 
        services, including such persons that are operating a covered 
        platform or are controlled by a covered platform 
        operator.</DELETED>
        <DELETED>    (3) Commission.--The term ``Commission'' means the 
        Federal Trade Commission.</DELETED>
        <DELETED>    (4) Covered platform.--The term ``covered 
        platform'' means an online platform--</DELETED>
                <DELETED>    (A) that has been designated as a covered 
                platform under section 2(e); or</DELETED>
                <DELETED>    (B) that--</DELETED>
                        <DELETED>    (i) at any point during the 12 
                        months preceding a designation under section 
                        2(e) or at any point during the 12 months 
                        preceding the filing of a complaint for an 
                        alleged violation of this Act--</DELETED>
                                <DELETED>    (I) has at least 
                                50,000,000 United States-based monthly 
                                active users on the online platform; 
                                or</DELETED>
                                <DELETED>    (II) has at least 100,000 
                                United States-based monthly active 
                                business users on the online 
                                platform;</DELETED>
                        <DELETED>    (ii) at any point during the 2 
                        years preceding a designation under section 
                        2(e) or at any point during the 2 years 
                        preceding the filing of a complaint for an 
                        alleged violation of this Act, is owned or 
                        controlled by a person with United States net 
                        annual sales or a market capitalization greater 
                        than $550,000,000,000, adjusted for inflation 
                        on the basis of the Consumer Price Index; 
                        and</DELETED>
                        <DELETED>    (iii) is a critical trading 
                        partner for the sale or provision of any 
                        product or service offered on or directly 
                        related to the online platform.</DELETED>
        <DELETED>    (5) Critical trading partner.--The term ``critical 
        trading partner'' means a person that has the ability to 
        restrict or materially impede the access of--</DELETED>
                <DELETED>    (A) a business user to its users or 
                customers; or</DELETED>
                <DELETED>    (B) a business user to a tool or service 
                that it needs to effectively serve its users or 
                customers.</DELETED>
        <DELETED>    (6) Person.--The term ``person'' has the meaning 
        given the term in subsection (a) of section 1 of the Clayton 
        Act (15 U.S.C. 12).</DELETED>
        <DELETED>    (7) Data.--</DELETED>
                <DELETED>    (A) In general.--Not later than 6 months 
                after the date of enactment of this Act, the Commission 
                shall adopt rules in accordance with section 553 of 
                title 5, United States Code, to define the term 
                ``data'' for the purpose of implementing and enforcing 
                this Act.</DELETED>
                <DELETED>    (B) Data.--The term ``data'' shall include 
                information that is collected by or provided to a 
                covered platform or business user that is linked, or 
                reasonably linkable, to a specific--</DELETED>
                        <DELETED>    (i) user or customer of the 
                        covered platform; or</DELETED>
                        <DELETED>    (ii) user or customer of a 
                        business user.</DELETED>
        <DELETED>    (8) Online platform.--The term ``online platform'' 
        means a website, online or mobile application, operating 
        system, digital assistant, or online service that--</DELETED>
                <DELETED>    (A) enables a user to generate content 
                that can be viewed by other users on the platform or to 
                interact with other content on the platform;</DELETED>
                <DELETED>    (B) facilitates the offering, sale, 
                purchase, payment, or shipping of products or services, 
                including software applications, between and among 
                consumers or businesses not controlled by the platform 
                operator; or</DELETED>
                <DELETED>    (C) enables user searches or queries that 
                access or display a large volume of 
                information.</DELETED>
        <DELETED>    (9) Control.--The term ``control'' with respect to 
        a person means--</DELETED>
                <DELETED>    (A) holding 25 percent or more of the 
                stock of the person;</DELETED>
                <DELETED>    (B) having the right to 25 percent or more 
                of the profits of the person;</DELETED>
                <DELETED>    (C) having the right to 25 percent or more 
                of the assets of the person, in the event of the 
                person's dissolution;</DELETED>
                <DELETED>    (D) if the person is a corporation, having 
                the power to designate 25 percent or more of the 
                directors of the person;</DELETED>
                <DELETED>    (E) if the person is a trust, having the 
                power to designate 25 percent or more of the trustees; 
                or</DELETED>
                <DELETED>    (F) otherwise exercises substantial 
                control over the person.</DELETED>
        <DELETED>    (10) State.--The term ``State'' means a State, the 
        District of Columbia, the Commonwealth of Puerto Rico, and any 
        other territory or possession of the United States.</DELETED>
<DELETED>    (i) Enforcement.--</DELETED>
        <DELETED>    (1) In general.--Except as otherwise provided in 
        this Act--</DELETED>
                <DELETED>    (A) the Commission shall enforce this Act 
                in the same manner, by the same means, and with the 
                same jurisdiction, powers, and duties as though all 
                applicable terms of the Federal Trade Commission Act 
                (15 U.S.C. 41 et seq.) were incorporated into and made 
                a part of this Act;</DELETED>
                <DELETED>    (B) the Attorney General shall enforce 
                this Act in the same manner, by the same means, and 
                with the same jurisdiction, powers and duties as though 
                all applicable terms of the Sherman Act (15 U.S.C. 1 et 
                seq.), Clayton Act (15 U.S.C. 12 et seq.), and 
                Antitrust Civil Process Act (15 U.S.C. 1311 et seq.) 
                were incorporated into and made a part of this Act; 
                and</DELETED>
                <DELETED>    (C) any attorney general of a State shall 
                enforce this Act in the same manner, by the same means, 
                and with the same jurisdiction, powers and duties as 
                though all applicable terms of the Sherman Act (15 
                U.S.C. 1 et seq.) and the Clayton Act (15 U.S.C. 12 et 
                seq.) were incorporated into and made a part of this 
                Act.</DELETED>
        <DELETED>    (2) Unfair methods of competition.--A violation of 
        this Act shall also constitute an unfair method of competition 
        under section 5 of the Federal Trade Commission Act (15 U.S.C. 
        45).</DELETED>
        <DELETED>    (3) Commission independent litigation authority.--
        If the Commission has reason to believe that a person violated 
        this Act, the Commission may commence a civil action, in its 
        own name by any of its attorneys designated by it for such 
        purpose, to recover a civil penalty and seek other appropriate 
        relief in a district court of the United States.</DELETED>
        <DELETED>    (4) Parens patriae.--Any attorney general of a 
        State may bring a civil action in the name of such State for a 
        violation of this Act as parens patriae on behalf of natural 
        persons residing in such State, in any district court of the 
        United States having jurisdiction of the defendant, and may 
        secure any form of relief provided for in this 
        section.</DELETED>
<DELETED>    (j) Emergency Relief.--</DELETED>
        <DELETED>    (1) In general.--The Commission, Assistant 
        Attorney General of the Antitrust Division, or any attorney 
        general of a State may seek a temporary injunction requiring 
        the covered platform operator to take or stop taking any action 
        for not more than 120 days and the court may grant such relief 
        if the Commission, the United States, or the attorney general 
        of a State proves--</DELETED>
                <DELETED>    (A) there is a claim that a covered 
                platform operator took an action that would violate 
                this Act; and</DELETED>
                <DELETED>    (B) that action impairs the ability of 
                business users to compete with the covered platform 
                operator.</DELETED>
        <DELETED>    (2) Emergency relief.--The emergency relief shall 
        not last more than 120 days from the filing of the 
        complaint.</DELETED>
        <DELETED>    (3) Termination.--The court shall terminate the 
        emergency relief at any time that the covered platform operator 
        proves that the Commission, the United States, or the attorney 
        general of the State seeking relief under this section has not 
        taken reasonable steps to investigate whether a violation has 
        occurred.</DELETED>
        <DELETED>    (4) Other equitable relief.--Nothing in this 
        subsection prevents or limits the Commission, the United 
        States, or any attorney general of any State from seeking other 
        equitable relief as provided in subsection (g) of this 
        section.</DELETED>
<DELETED>    (k) Statute of Limitations.--A proceeding for a violation 
of this section may be commenced not later than 6 years after such 
violation occurs.</DELETED>

<DELETED>SEC. 3. JUDICIAL REVIEW.</DELETED>

<DELETED>    (a) In General.--Any party that is subject to a covered 
platform designation under section 2(e) of this Act, a decision in 
response to a request to remove a covered platform designation under 
section 2(f) of this Act, a final order issued in any district court of 
the United States under this Act, or a final order of the Commission 
issued in an administrative adjudicative proceeding under this Act may 
within 30 days of the issuance of such designation, decision, or order, 
petition for review of such designation, decision, or order in the 
United States Court of Appeals for the District of Columbia 
Circuit.</DELETED>
<DELETED>    (b) Treatment of Findings.--In a proceeding for judicial 
review of a covered platform designation under section 2(e) of this 
Act, a decision in response to a request to remove a covered platform 
designation under section 2(f) of this Act, or a final order of the 
Commission issued in an administrative adjudicative proceeding under 
this Act, the findings of the Commission or the Assistant Attorney 
General as to the facts, if supported by evidence, shall be 
conclusive.</DELETED>

<DELETED>SEC. 4. ENFORCEMENT GUIDELINES.</DELETED>

<DELETED>    (a) In General.--Not later than 1 year after the date of 
enactment of this Act, the Commission and the Assistant Attorney 
General of the Antitrust Division shall jointly issue guidelines 
outlining policies and practices, relating to agency enforcement of 
this Act, including policies for determining the appropriate amount of 
a civil penalty to be sought under section 2(g)(1) of this Act, with 
the goal of promoting transparency, deterring violations, and imposing 
sanctions proportionate to the gravity of individual 
violations.</DELETED>
<DELETED>    (b) Updates.--The Commission and the Assistant Attorney 
General of the Antitrust Division shall update the joint guidelines 
issued under subsection (a), as needed to reflect current agency 
policies and practices, but not less frequently than once every 4 years 
beginning on the date of enactment of this Act.</DELETED>
<DELETED>    (c) Operation.--The Joint Guidelines issued under this 
section do not confer any rights upon any person, State, or locality, 
nor shall they operate to bind the Commission, Department of Justice, 
or any person, State, or locality to the approach recommended in such 
Guidelines.</DELETED>

<DELETED>SEC. 5. RULE OF CONSTRUCTION.</DELETED>

<DELETED>    (a) Notwithstanding any other provision of law, whether 
user conduct would constitute a violation of section 1030 of title 18 
of the United States Code is not dispositive of whether the defendant 
has established an affirmative defense under this Act.</DELETED>
<DELETED>    (b) An action taken by a covered platform operator that is 
reasonably tailored to protect the rights of third parties under 
sections 106, 1101, 1201, or 1401 of title 17 of the United States Code 
or rights actionable under sections 32 or 43 of the Lanham Act (15 
U.S.C. 1114, 1125), or corollary state law, shall not be considered 
unlawful conduct under subsection 2(a) or (b) of this Act.</DELETED>
<DELETED>    (c) Nothing in this Act shall be construed to limit any 
authority of the Attorney General or the Commission under the antitrust 
laws, the Federal Trade Commission Act (15 U.S.C. 45), or any other 
provision of law or to limit the application of any law.</DELETED>

<DELETED>SEC. 6. SEVERABILITY.</DELETED>

<DELETED>    If any provision of this Act, an amendment made by this 
Act, or the application of such provision or amendment to any person or 
circumstance is held to be unconstitutional, the remainder of this Act 
and of the amendments made by this Act, and the application of the 
remaining provisions of this Act and amendments to any person or 
circumstance shall not be affected.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``American Innovation and Choice 
Online Act''.

SEC. 2. DEFINITIONS.

    (a) In General.--In this Act:
            (1) Antitrust laws; person.--The terms ``antitrust laws'' 
        and ``person'' have the meanings given the terms in subsection 
        (a) of the first section of the Clayton Act (15 U.S.C. 12).
            (2) Business user.--The term ``business user''--
                    (A) means a person that uses or is likely to use a 
                covered platform for the advertising, sale, or 
                provision of products or services, including such 
                persons that are operating a covered platform or are 
                controlled by a covered platform operator; and
                    (B) does not include a person that--
                            (i) is a clear national security risk; or
                            (ii) is controlled by the Government of the 
                        People's Republic of China or the government of 
                        another foreign adversary.
            (3) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (4) Control.--The term ``control'' means, with respect to a 
        person--
                    (A) holding 25 percent or more of the stock of the 
                person;
                    (B) having the right to 25 percent or more of the 
                profits of the person;
                    (C) in the event of the dissolution of the person, 
                having the right to 25 percent or more of the assets of 
                the person;
                    (D) if the person is a corporation, having the 
                power to designate 25 percent or more of the directors 
                of the person;
                    (E) if the person is a trust, having the power to 
                designate 25 percent or more of the trustees; or
                    (F) otherwise exercising substantial control over 
                the person.
            (5) Covered platform.--The term ``covered platform'' means 
        an online platform that--
                    (A) has been designated as a covered platform under 
                section 3(d);
                    (B) is owned or controlled by a person that--
                            (i) is a publicly traded company; and
                            (ii)(I) at any point during the 12 months 
                        preceding a designation under section 3(d) or 
                        the 12 months preceding the filing of a 
                        complaint for an alleged violation of this Act 
                        has at least--
                                    (aa) 50,000,000 United States-based 
                                monthly active users on the online 
                                platform; or
                                    (bb) 100,000 United States-based 
                                monthly active business users on the 
                                online platform;
                            (II) during--
                                    (aa) the 2 years preceding a 
                                designation under section 3(d), or the 
                                2 years preceding the filing of a 
                                complaint for an alleged violation of 
                                this Act--
                                            (AA) at any point, is owned 
                                        or controlled by a person with 
                                        United States net annual sales 
                                        of greater than 
                                        $550,000,000,000, adjusted for 
                                        inflation on the basis of the 
                                        Consumer Price Index; or
                                            (BB) during any 180-day 
                                        period during the 2-year 
                                        period, an average market 
                                        capitalization greater than 
                                        $550,000,000,000, adjusted for 
                                        inflation on the basis of the 
                                        Consumer Price Index or
                                    (bb) the 12 months preceding a 
                                designation under section 3(d), or at 
                                any point during the 12 months 
                                preceding the filing of a complaint for 
                                an alleged violation of this Act, has 
                                at least 1,000,000,000 worldwide 
                                monthly active users on the online 
                                platform; and
                            (III) is a critical trading partner for the 
                        sale or provision of any product or service 
                        offered on or directly related to the online 
                        platform; or
                    (C) is owned or controlled by a person that--
                            (i) is not a publicly traded company; and
                            (ii)(I) at any point during the 12 months 
                        preceding a designation under section 3(d), or 
                        the 12 months preceding the filing of a 
                        complaint for an alleged violation of this Act 
                        has at least--
                                    (aa) 50,000,000 United States-based 
                                monthly active users on the online 
                                platform; or
                                    (bb) 100,000 United States-based 
                                monthly active business users on the 
                                online platform;
                            (II) at any point--
                                    (aa) during the 2 years preceding a 
                                designation under section 3(d), or the 
                                2 years preceding the filing of a 
                                complaint for an alleged violation of 
                                this Act, is owned or controlled by a 
                                person with earnings, before interest, 
                                taxes, depreciation, and amortization, 
                                in the previous fiscal year of greater 
                                than $30,000,000,000, adjusted for 
                                inflation on the basis of the Consumer 
                                Price Index; or
                                    (bb) during the 12 months preceding 
                                a designation under section 3(d), or 
                                the 12 months preceding the filing of a 
                                complaint for an alleged violation of 
                                this Act, has at least 1,000,000,000 
                                worldwide monthly active users on the 
                                online platform; and
                            (III) is a critical trading partner for the 
                        sale or provision of any product or service 
                        offered on or directly related to the online 
                        platform.
            (6) Critical trading partner.--The term ``critical trading 
        partner'' means a person that has the ability to restrict or 
        materially impede the access of--
                    (A) a business user to the users or customers of 
                the business user; or
                    (B) a business user to a tool or service that the 
                business user needs to effectively serve the users or 
                customers of the business user.
            (7) Data.--The term ``data'' includes information that is 
        collected by or provided to a covered platform or business user 
        that is linked, or reasonably linkable, to a specific--
                    (A) user or customer of the covered platform; or
                    (B) user or customer of a business user.
            (8) Foreign adversary.--The term ``foreign adversary'' has 
        the meaning given the term in section 8(c) of the Secure and 
        Trusted Communications Networks Act of 2019 (47 U.S.C. 
        1607(c)).
            (9) Online platform.--The term ``online platform'' means a 
        website, online or mobile application, operating system, 
        digital assistant, or online service that--
                    (A) enables a user to generate content that can be 
                viewed by other users on the platform or to interact 
                with other content on the platform;
                    (B) facilitates the offering, advertising, sale, 
                purchase, payment, or shipping of products or services, 
                including software applications, between and among 
                consumers or businesses not controlled by the platform 
                operator; or
                    (C) enables user searches or queries that access or 
                display a large volume of information.
            (10) Publicly traded company.--The term ``publicly traded 
        company''--
                    (A) means any company whose principal class of 
                shares--
                            (i) is listed on a stock exchange; and
                            (ii) can be readily purchased or sold by 
                        the public; and
                    (B) includes all subsidiaries of a company descried 
                in subparagraph (A).
            (11) State.--The term ``State'' means a State, the District 
        of Columbia, the Commonwealth of Puerto Rico, and any other 
        territory or possession of the United States.
    (b) Regulations.--Not later than 180 days after the date of 
enactment of this Act, the Commission shall promulgate regulations in 
accordance with section 553 of title 5, United States Code, to define 
the term data for the purpose of implementing and enforcing this Act.

SEC. 3. UNLAWFUL CONDUCT.

    (a) In General.--It shall be unlawful for a person operating a 
covered platform in or affecting commerce to engage in conduct, as 
demonstrated by a preponderance of the evidence, that would--
            (1) preference the products, services, or lines of business 
        of the covered platform operator over those of another business 
        user on the covered platform in a manner that would materially 
        harm competition;
            (2) limit the ability of the products, services, or lines 
        of business of another business user to compete on the covered 
        platform relative to the products, services, or lines of 
        business of the covered platform operator in a manner that 
        would materially harm competition;
            (3) discriminate in the application or enforcement of the 
        terms of service of the covered platform among similarly 
        situated business users in a manner that would materially harm 
        competition;
            (4) materially restrict, impede, or unreasonably delay the 
        capacity of a business user to access or interoperate with the 
        same platform, operating system, or hardware or software 
        features that are available to the products, services, or lines 
        of business of the covered platform operator that compete or 
        would compete with products or services offered by business 
        users on the covered platform;
            (5) condition access to the covered platform or preferred 
        status or placement on the covered platform on the purchase or 
        use of other products or services offered by the covered 
        platform operator that are not part of or intrinsic to the 
        covered platform;
            (6) use nonpublic data that are obtained from or generated 
        on the covered platform by the activities of a business user or 
        by the interaction of a covered platform user with the products 
        or services of a business user to offer, or support the 
        offering of, the products or services of the covered platform 
        operator that compete or would compete with products or 
        services offered by business users on the covered platform;
            (7) materially restrict or impede a business user from 
        accessing data generated on the covered platform by the 
        activities of the business user, or through an interaction of a 
        covered platform user with the products or services of the 
        business user, such as by establishing contractual or technical 
        restrictions that prevent the portability by the business user 
        to other systems or applications of the data of the business 
        user;
            (8) materially restrict or impede covered platform users 
        from uninstalling software applications that have been 
        preinstalled on the covered platform or changing default 
        settings that direct or steer covered platform users to 
        products or services offered by the covered platform operator, 
        unless necessary--
                    (A) for the security or functioning of the covered 
                platform; or
                    (B) to prevent data from the covered platform 
                operator or another business user from being 
                transferred to the Government of the People's Republic 
                of China or the government of another foreign 
                adversary;
            (9) in connection with any covered platform user interface, 
        including search or ranking functionality offered by the 
        covered platform, treat the products, services, or lines of 
        business of the covered platform operator more favorably 
        relative to those of another business user than under standards 
        mandating the neutral, fair, and nondiscriminatory treatment of 
        all business users; or
            (10) retaliate against any business user or covered 
        platform user that raises concerns with any law enforcement 
        authority about actual or potential violations of State or 
        Federal law.
    (b) Affirmative Defenses.--
            (1) In general.--It shall be an affirmative defense to an 
        action under paragraph (1), (2), or (3) of subsection (a) if 
        the defendant establishes by a preponderance of the evidence 
        that the conduct was narrowly tailored, nonpretextual, and 
        reasonably necessary to--
                    (A) prevent a violation of, or comply with, Federal 
                or State law;
                    (B) protect safety, user privacy, the security of 
                nonpublic data, or the security of the covered 
                platform; or
                    (C) maintain or substantially enhance the core 
                functionality of the covered platform.
            (2) Other unlawful conduct.--It shall be an affirmative 
        defense to an action under paragraph (4), (5), (6), (7), (8), 
        (9), or (10) of subsection (a) if the defendant establishes by 
        a preponderance of the evidence that the conduct--
                    (A) has not resulted in and would not result in 
                material harm to competition; or
                    (B) was narrowly tailored, could not be achieved 
                through less discriminatory means, was nonpretextual, 
                and was reasonably necessary to--
                            (i) prevent a violation of, or comply with, 
                        Federal or State law;
                            (ii) protect safety, user privacy, the 
                        security of non-public data, or the security of 
                        the covered platform; or
                            (iii) maintain or substantially enhance the 
                        core functionality of the covered platform.
            (3) Effect of other laws.--Notwithstanding any other 
        provision of law, whether user conduct would constitute a 
        violation of section 1030 of title 18, United States Code, 
        shall have no effect on whether the defendant has established 
        an affirmative defense under this Act.
    (c) Enforcement.--
            (1) In general.--Except as otherwise provided in this Act--
                    (A) the Commission shall enforce this Act in the 
                same manner, by the same means, and with the same 
                jurisdiction, powers, and duties as though all 
                applicable terms of the Federal Trade Commission Act 
                (15 U.S.C. 41 et seq.) were incorporated into and made 
                a part of this Act;
                    (B) the Attorney General shall enforce this Act in 
                the same manner, by the same means, and with the same 
                jurisdiction, powers, and duties as though all 
                applicable terms of the Sherman Act (15 U.S.C. 1 et 
                seq.), Clayton Act (15 U.S.C. 12 et seq.), and 
                Antitrust Civil Process Act (15 U.S.C. 1311 et seq.) 
                were incorporated into and made a part of this Act; and
                    (C) any attorney general of a State shall enforce 
                this Act in the same manner, by the same means, and 
                with the same jurisdiction, powers, and duties as 
                though all applicable terms of the Sherman Act (15 
                U.S.C. 1 et seq.) and the Clayton Act (15 U.S.C. 12 et 
                seq.) were incorporated into and made a part of this 
                Act.
            (2) Commission independent litigation authority.--If the 
        Commission has reason to believe that a person violated this 
        Act, the Commission may commence a civil action, in its own 
        name by any of its attorneys designated by it for such purpose, 
        to recover a civil penalty and seek other appropriate relief in 
        a district court of the United States.
            (3) Parens patriae.--Any attorney general of a State may 
        bring a civil action in the name of such State for a violation 
        of this Act as parens patriae on behalf of natural persons 
        residing in such State, in any district court of the United 
        States having jurisdiction of the defendant for any form of 
        relief provided for in this section.
            (4) Enforcement in federal district court.--The Commission, 
        Attorney General, or any attorney general of a State shall only 
        be able to enforce this Act through a civil action brought 
        before a district court of the United States.
            (5) Remedies.--
                    (A) In general.--The remedies provided in this 
                paragraph are in addition to, and not in lieu of, any 
                other remedy available under Federal or State law.
                    (B) Civil penalty.--Any person who violates this 
                Act shall be liable to the United States or the 
                Commission for a civil penalty, which shall accrue to 
                the United States Treasury, in an amount not greater 
                than 15 percent of the total United States revenue of 
                the person for the period of time the violation 
                occurred.
                    (C) Injunctions.--
                            (i) In general.--The Assistant Attorney 
                        General in charge of the Antitrust Division, 
                        the Commission, or the attorney general of any 
                        State may seek, and the court may order, relief 
                        in equity as necessary to prevent, restrain, or 
                        prohibit violations of this Act.
                            (ii) Temporary injunctions.--
                                    (I) In general.--The Commission, 
                                Assistant Attorney General in charge of 
                                the Antitrust Division, or any attorney 
                                general of a State may seek a temporary 
                                injunction requiring the covered 
                                platform operator to take or stop 
                                taking any action for not more than 120 
                                days.
                                    (II) Grant.--The court may grant a 
                                temporary injunction under this clause 
                                if the Commission, the United States, 
                                or the attorney general of a State, as 
                                applicable, proves--
                                            (aa) there is a plausible 
                                        claim, supported by evidence, 
                                        that a covered platform 
                                        operator took an action that 
                                        would violate this Act;
                                            (bb) that action materially 
                                        impairs the ability of business 
                                        users to compete with the 
                                        covered platform operator; and
                                            (cc) a temporary injunction 
                                        would be in the public 
                                        interest.
                                    (III) Duration.--A temporary 
                                injunction under this clause shall 
                                expire not later than the date that is 
                                120 days after the date on which a 
                                complaint under this subsection is 
                                filed.
                                    (IV) Termination.--The court shall 
                                terminate a temporary injunction under 
                                this clause if the covered platform 
                                operator proves that--
                                            (aa) the Commission, the 
                                        United States, or the attorney 
                                        general of the State seeking 
                                        relief under this subsection 
                                        has not taken reasonable steps 
                                        to investigate whether a 
                                        violation has occurred; or
                                            (bb) allowing the temporary 
                                        injunction to continue would 
                                        harm the public interest.
                                    (V) Other equitable relief.--
                                Nothing in this clause shall prevent or 
                                limit the Commission, the United 
                                States, or any attorney general of any 
                                State from seeking other equitable 
                                relief, including the relief provided 
                                in this paragraph.
                    (D) Forfeiture for repeat offenders.--If a person 
                has engaged in a pattern or practice of violating this 
                Act, the court shall consider requiring, and may order, 
                that the chief executive officer, and any other 
                corporate officer as appropriate to deter violations of 
                this Act, forfeit to the United States Treasury any 
                compensation received by that person during the 12 
                months preceding or following the filing of a complaint 
                for an alleged violation of this Act.
            (6) Statute of limitations.--A proceeding for a violation 
        of this section may be commenced not later than 6 years after 
        such violation occurs.
            (7) Rules of construction.--
                    (A) In general.--Nothing in subsection (a) may be 
                construed--
                            (i) to require a covered platform operator 
                        to divulge or license any intellectual 
                        property, including any trade secrets, business 
                        secrets, or other confidential proprietary 
                        business processes, owned by or licensed to the 
                        covered platform operator;
                            (ii) to prevent a covered platform operator 
                        from asserting its preexisting rights under 
                        intellectual property law to prevent the 
                        unauthorized use of any intellectual property 
                        owned by or duly licensed to the covered 
                        platform operator;
                            (iii) to require a covered platform 
                        operator to interoperate or share data with 
                        persons or business users that are on any list 
                        maintained by the Federal Government by which 
                        entities--
                                    (I) are identified as limited or 
                                prohibited from engaging in economic 
                                transactions as part of United States 
                                sanctions or export-control regimes; or
                                    (II) have been identified as 
                                national security, intelligence, or law 
                                enforcement risks;
                            (iv) to prohibit a covered platform 
                        operator from promptly requesting and obtaining 
                        the consent of a covered platform user prior to 
                        providing access to the nonpublic, personally 
                        identifiable information of the user to a 
                        covered platform user under that subsection;
                            (v) in a manner that would likely result in 
                        data on the covered platform or data from 
                        another business user being transferred to the 
                        Government of the People's Republic of China or 
                        the government of another foreign adversary; or
                            (vi) to impose liability on a covered 
                        platform operator solely for offering--
                                    (I) full end-to-end encrypted 
                                messaging or communication products or 
                                services that allow communication 
                                between covered platform users; or
                                    (II) a fee-for-service subscription 
                                that provides benefits to covered 
                                platform users on the covered platform.
                    (B) Copyright and trademark violations.--An action 
                taken by a covered platform operator that is reasonably 
                tailored to protect the rights of third parties under 
                section 106, 1101, 1201, or 1401 of title 17, United 
                States Code, or rights actionable under section 32 or 
                43 of the Act entitled ``An Act to provide for the 
                registration and protection of trademarks used in 
                commerce, to carry out the provisions of certain 
                international conventions, and for other purposes'', 
                approved July 5, 1946 (commonly known as the ``Lanham 
                Act'' or the ``Trademark Act of 1946'') (15 U.S.C. 
                1114, 1125), or corollary State law, shall not be 
                considered unlawful conduct under subsection (a).
    (d) Covered Platform Designation.--
            (1) In general.--The Commission and Department of Justice 
        may jointly, with concurrence of the other, designate an online 
        platform as a covered platform for the purpose of implementing 
        and enforcing this Act, which shall--
                    (A) be based on a finding that the criteria set 
                forth in subparagraph (B) or (C) of section 2(a)(5) are 
                met;
                    (B) be issued in writing and published in the 
                Federal Register; and
                    (C) except as provided in paragraph (2), apply for 
                a 7-year period beginning on the date on which the 
                designation is issued, regardless of whether there is a 
                change in control or ownership over the covered 
                platform.
            (2) Removal of covered platform designation.--The 
        Commission or the Department of Justice shall--
                    (A) consider whether a designation of a covered 
                platform under paragraph (1) should be removed prior to 
                the expiration of the 7-year period if the covered 
                platform operator files a request with the Commission 
                or the Department of Justice that shows that the online 
                platform no longer meets the criteria set forth in 
                subparagraphs (B) and (C);
                    (B) determine whether to grant a request submitted 
                under subparagraph (A) not later than 120 days after 
                the date on which the request is filed; and
                    (C) obtain the concurrence of the Commission or the 
                Department of Justice, as appropriate, before granting 
                a request submitted under subparagraph (A).
            (3) Judicial review.--
                    (A) In general.--Any person aggrieved by a 
                designation under paragraph (1), a decision in response 
                to a request under paragraph (2), or a final order 
                issued in any district court of the United States under 
                this Act may, within 30 days of the issuance of such 
                designation, decision, or order, petition for review of 
                such designation, decision, or order in the United 
                States Court of Appeals for the District of Columbia 
                Circuit.
                    (B) Treatment of findings.--In a proceeding for 
                judicial review of a designation under paragraph (1) or 
                a decision in response to a request under paragraph 
                (2), the findings of fact by the Commission or the 
                Department of Justice, if supported by evidence, shall 
                be conclusive.

SEC. 4. ENFORCEMENT GUIDELINES.

    (a) In General.--Not later than 270 days after the date of 
enactment of this Act, the Commission and the Assistant Attorney 
General in charge of the Antitrust Division, in consultation with other 
relevant Federal agencies and State attorneys general, shall jointly 
issue agency enforcement guidelines outlining policies and practices 
relating to conduct that may materially harm competition under section 
3(a), agency interpretations of the affirmative defenses under section 
3(b), and policies for determining the appropriate amount of a civil 
penalty to be sought under section 3(c), with the goal of promoting 
transparency, deterring violations, fostering innovation and 
procompetitive conduct, and imposing sanctions proportionate to the 
gravity of individual violations.
    (b) Updates.--The Commission and the Assistant Attorney General in 
charge of the Antitrust Division shall update the joint guidelines 
issued under subsection (a) as needed to reflect current agency 
policies and practices, but not less frequently than once every 4 years 
beginning on the date of enactment of this Act.
    (c) Public Notice and Comment.--Before issuing guidelines, or 
updates to those guidelines, under this section, the Commission and the 
Assistant Attorney General in charge of the Antitrust Division shall--
            (1) publish proposed guidelines in draft form; and
            (2) provide public notice and opportunity for comment for 
        not less than 60 days after the date on which the draft 
        guidelines are published.
    (d) Operation.--The joint guidelines issued under this section do 
not--
            (1) confer any rights upon any person, State, or locality; 
        and
            (2) operate to bind the Commission, Department of Justice, 
        or any person, State, or locality to the approach recommended 
        in the guidelines.

SEC. 5. RULE OF CONSTRUCTION.

    Nothing in this Act may be construed to limit--
            (1) any authority of the Attorney General or the Commission 
        under the antitrust laws, section 5 of the Federal Trade 
        Commission Act (15 U.S.C. 45), or any other provision of law; 
        or
            (2) the application of any law.

SEC. 6. SEVERABILITY.

    If any provision of this Act, or the application of such provision 
to any person or circumstance, is held to be unconstitutional, the 
remainder of this Act, and the application of the remaining provisions 
of this Act, to any person or circumstance, shall not be affected.

SEC. 7. EFFECTIVE DATE.

    (a) In General.--Except as provided in subsection (b), this Act 
shall take effect on the date of enactment of this Act.
    (b) Exception.--Section 3(a) shall take effect on the date that is 
1 year after the date of enactment of this Act.
    (c) Authority.--The exception in subsection (b) shall not limit the 
authority of the Commission or Department of Justice to implement other 
sections of this Act.
                                                       Calendar No. 301

117th CONGRESS

  2d Session

                                S. 2992

_______________________________________________________________________

                                 A BILL

  To provide that certain discriminatory conduct by covered platforms 
               shall be unlawful, and for other purposes.

_______________________________________________________________________

                             March 2, 2022

                       Reported with an amendment
```