II 

117TH CONGRESS 

1ST 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 

A BILL 

To provide that certain discriminatory conduct by covered 

platforms shall be unlawful, and for other purposes. 

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 ‘‘American Innovation 

5 and Choice Online Act’’. 

6 SEC. 2. UNLAWFUL CONDUCT. 

7 (a) VIOLATION.—It shall be unlawful for a person op8 erating a covered platform, in or affecting commerce, if 


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1 it is shown, by a preponderance of the evidence, that the 

2 person has engaged in conduct that would— 

3 (1) unfairly preference the covered platform op4 erator’s own products, services, or lines of business 

5 over those of another business user on the covered 

6 platform in a manner that would materially harm 

7 competition on the covered platform; 

8 (2) unfairly limit the ability of another business 

9 user’s products, services, or lines of business to com10 pete on the covered platform relative to the covered 

11 platform operator’s own products, services, or lines 

12 of business in a manner that would materially harm 

13 competition on the covered platform; or 

14 (3) discriminate in the application or enforce15 ment of the covered platform’s terms of service 

16 among similarly situated business users in a manner 

17 that may materially harm competition on the cov18 ered platform. 

19 (b) UNLAWFUL CONDUCT.—It shall be unlawful for 

20 a person operating a covered platform, in or affecting com21 merce, if it is shown, by a preponderance of the evidence, 

22 that the person has engaged in conduct that would— 

23 (1) materially restrict or impede the capacity of 

24 a business user to access or interoperate with the 

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1 ware features that are available to the covered plat2 form operator’s own products, services, or lines of 

3 business that compete or would compete with prod4 ucts or services offered by business users on the cov5 ered platform; 

6 (2) condition access to the covered platform or 

7 preferred status or placement on the covered plat8 form on the purchase or use of other products or 

9 services offered by the covered platform operator 

10 that are not part of or intrinsic to the covered plat11 form itself; 

12 (3) use non-public data that are obtained from 

13 or generated on the covered platform by the activi14 ties of a business user or by the interaction of a cov15 ered platform user with the products or services of 

16 a business user to offer, or support the offering of, 

17 the covered platform operator’s own products or 

18 services that compete or would compete with prod19 ucts or services offered by business users on the cov20 ered platform; 

21 (4) materially restrict or impede a business user 

22 from accessing data generated on the covered plat23 form by the activities of the business user, or 

24 through an interaction of a covered platform user 

25 with the business user’s products or services, such as 


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1 by establishing contractual or technical restrictions 

2 that prevent the portability of the business user’s 

3 data by the business user to other systems or appli4 cations; 

5 (5) unless necessary for the security or func6 tioning of the covered platform, materially restrict or 

7 impede covered platform users from un-installing 

8 software applications that have been preinstalled on 

9 the covered platform or changing default settings 

10 that direct or steer covered platform users to prod11 ucts or services offered by the covered platform op12 erator; 

13 (6) in connection with any covered platform 

14 user interface, including search or ranking 

15 functionality offered by the covered platform, treat 

16 the covered platform operator’s own products, serv17 ices, or lines of business more favorably relative to 

18 those of another business user than they would be 

19 treated under standards mandating the neutral, fair, 

20 and non-discriminatory treatment of all business 

21 users; or 

22 (7) retaliate against any business user or cov23 ered platform user that raises concerns with any law 

24 enforcement authority about actual or potential vio25 lations of State or Federal law. 


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1 (c) RULE OF CONSTRUCTION.—Subsections (a) and 

2 (b) shall not be construed to require a covered platform 

3 operator to divulge, license, or otherwise grant the use of 

4 the covered platform operator’s intellectual property, trade 

5 or business secrets, or other confidential proprietary busi6 ness processes to a business user. 

7 (d) AFFIRMATIVE DEFENSES.— 

8 (1) IN GENERAL.—Subsection (a) shall not 

9 apply if the defendant establishes by a preponder10 ance of the evidence that the conduct described in 

11 subsections (a) was narrowly tailored, was 

12 nonpretextual, and was necessary to— 

13 (A) prevent a violation of, or comply with, 

14 Federal or State law; 

15 (B) protect safety, user privacy, the secu16 rity of non-public data, or the security of the 

17 covered platform; or 

18 (C) maintain or enhance the core 

19 functionality of the covered platform. 

20 (2) UNLAWFUL CONDUCT.—Subsection (b) shall 

21 not apply if the defendant establishes by a prepon22 derance of the evidence that the conduct described 

23 in subsection (b)— 

24 (A) has not resulted in and would not re25 sult in material harm to the competitive process 


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1 by restricting or impeding legitimate activity by 

2 business users; or 

3 (B) was narrowly tailored, could not be 

4 achieved through less discriminatory means, 

5 was nonpretextual, and was necessary to— 

6 (i) prevent a violation of, or comply 

7 with, Federal or State law; 

8 (ii) protect safety, user privacy, the 

9 security of non-public data, or the security 

10 of the covered platform; or 

11 (iii) maintain or enhance the core 

12 functionality of the covered platform. 

13 (e) COVERED PLATFORM DESIGNATION.—The Fed14 eral Trade Commission and Department of Justice may 

15 jointly, with concurrence of the other, designate a covered 

16 platform for the purpose of implementing and enforcing 

17 this Act. Such designation shall— 

18 (1) be based on a finding that the criteria set 

19 forth in clauses (i) through (iii) of subsection (h)(4) 

20 are met; 

21 (2) be issued in writing and published in the 

22 Federal Register; and 

23 (3) apply for 7 years from its issuance regard24 less of whether there is a change in control or own25 ership over the covered platform unless the CommisVerDate Sep 11 2014 01:55 Oct 19, 2021 Jkt 029200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2992.IS S2992

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1 sion or the Department of Justice removes the des2 ignation under subsection (f). 

3 (f) REMOVAL OF COVERED PLATFORM DESIGNA4 TION.—The Commission or the Department of Justice 

5 shall— 

6 (1) consider whether its designation of a cov7 ered platform under subsection (e) should be re8 moved prior to the expiration of the 7-year period if 

9 the covered platform operator files a request with 

10 the Commission or the Department of Justice, which 

11 shows that the online platform no longer meets the 

12 criteria set forth in clauses (i) through (iii) of sub13 section (h)(4); 

14 (2) determine whether to grant a request sub15 mitted under paragraph 1 not later than 120 days 

16 after the date of the filing of such request; and 

17 (3) obtain the concurrence of the Commission 

18 or the Department of Justice, as appropriate, before 

19 granting a request submitted under paragraph (1). 

20 (g) REMEDIES.—The remedies provided in this sub21 section are in addition to, and not in lieu of, any other 

22 remedy available under Federal or State law. 

23 (1) CIVIL PENALTY.—Any person who is found 

24 to have violated subsections (a) or (b) shall be liable 

25 to the United States or the Commission for a civil 


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1 penalty, which shall accrue to the United States 

2 Treasury, in an amount not more than 15 percent 

3 of the total United States revenue of the person for 

4 the period of time the violation occurred. 

5 (2) INJUNCTIONS.—The Assistant Attorney 

6 General of the Antitrust Division, the Commission, 

7 or the attorney general of any State may seek, and 

8 the court may order, relief in equity as necessary to 

9 prevent, restrain, or prohibit violations of this Act. 

10 (3) REPEAT OFFENDERS.—If the fact finder 

11 determines that a person has engaged in a pattern 

12 or practice of violating this Act, the court shall con13 sider requiring, and may order, that the Chief Exec14 utive Officer, and any other corporate officer as ap15 propriate to deter violations of this Act, forfeit to 

16 the United States Treasury any compensation re17 ceived by that person during the 12 months pre18 ceding or following the filing of a complaint for an 

19 alleged violation of this Act. 

20 (h) DEFINITIONS.—In this section: 

21 (1) ANTITRUST LAWS.—The term ‘‘antitrust 

22 laws’’ has the meaning given the term in subsection 

23 (a) of section 1 of the Clayton Act (15 U.S.C. 12). 

24 (2) BUSINESS USER.—The term ‘‘Business 

25 User’’ means a person that utilizes or is likely to 


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1 utilize the covered platform for the sale or provision 

2 of products or services, including such persons that 

3 are operating a covered platform or are controlled by 

4 a covered platform operator. 

5 (3) COMMISSION.—The term ‘‘Commission’’ 

6 means the Federal Trade Commission. 

7 (4) COVERED PLATFORM.—The term ‘‘covered 

8 platform’’ means an online platform— 

9 (A) that has been designated as a covered 

10 platform under section 2(e); or 

11 (B) that— 

12 (i) at any point during the 12 months 

13 preceding a designation under section 2(e) 

14 or at any point during the 12 months pre15 ceding the filing of a complaint for an al16 leged violation of this Act— 

17 (I) has at least 50,000,000 

18 United States-based monthly active 

19 users on the online platform; or 

20 (II) has at least 100,000 United 

21 States-based monthly active business 

22 users on the online platform; 

23 (ii) at any point during the 2 years 

24 preceding a designation under section 2(e) 

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1 ceding the filing of a complaint for an al2 leged violation of this Act, is owned or con3 trolled by a person with United States net 

4 annual sales or a market capitalization 

5 greater than $550,000,000,000, adjusted 

6 for inflation on the basis of the Consumer 

7 Price Index; and 

8 (iii) is a critical trading partner for 

9 the sale or provision of any product or 

10 service offered on or directly related to the 

11 online platform. 

12 (5) CRITICAL TRADING PARTNER.—The term 

13 ‘‘critical trading partner’’ means a person that has 

14 the ability to restrict or materially impede the access 

15 of— 

16 (A) a business user to its users or cus17 tomers; or 

18 (B) a business user to a tool or service 

19 that it needs to effectively serve its users or 

20 customers. 

21 (6) PERSON.—The term ‘‘person’’ has the 

22 meaning given the term in subsection (a) of section 

23 1 of the Clayton Act (15 U.S.C. 12). 

24 (7) DATA.— 


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1 (A) IN GENERAL.—Not later than 6 

2 months after the date of enactment of this Act, 

3 the Commission shall adopt rules in accordance 

4 with section 553 of title 5, United States Code, 

5 to define the term ‘‘data’’ for the purpose of 

6 implementing and enforcing this Act. 

7 (B) DATA.—The term ‘‘data’’ shall include 

8 information that is collected by or provided to 

9 a covered platform or business user that is 

10 linked, or reasonably linkable, to a specific— 

11 (i) user or customer of the covered 

12 platform; or 

13 (ii) user or customer of a business 

14 user. 

15 (8) ONLINE PLATFORM.—The term ‘‘online 

16 platform’’ means a website, online or mobile applica17 tion, operating system, digital assistant, or online 

18 service that— 

19 (A) enables a user to generate content that 

20 can be viewed by other users on the platform or 

21 to interact with other content on the platform; 

22 (B) facilitates the offering, sale, purchase, 

23 payment, or shipping of products or services, 

24 including software applications, between and 


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1 among consumers or businesses not controlled 

2 by the platform operator; or 

3 (C) enables user searches or queries that 

4 access or display a large volume of information. 

5 (9) CONTROL.—The term ‘‘control’’ with re6 spect to a person means— 

7 (A) holding 25 percent or more of the 

8 stock of the person; 

9 (B) having the right to 25 percent or more 

10 of the profits of the person; 

11 (C) having the right to 25 percent or more 

12 of the assets of the person, in the event of the 

13 person’s dissolution; 

14 (D) if the person is a corporation, having 

15 the power to designate 25 percent or more of 

16 the directors of the person; 

17 (E) if the person is a trust, having the 

18 power to designate 25 percent or more of the 

19 trustees; or 

20 (F) otherwise exercises substantial control 

21 over the person. 

22 (10) STATE.—The term ‘‘State’’ means a State, 

23 the District of Columbia, the Commonwealth of 

24 Puerto Rico, and any other territory or possession of 

25 the United States. 


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1 (i) ENFORCEMENT.— 

2 (1) IN GENERAL.—Except as otherwise pro3 vided in this Act— 

4 (A) the Commission shall enforce this Act 

5 in the same manner, by the same means, and 

6 with the same jurisdiction, powers, and duties 

7 as though all applicable terms of the Federal 

8 Trade Commission Act (15 U.S.C. 41 et seq.) 

9 were incorporated into and made a part of this 

10 Act; 

11 (B) the Attorney General shall enforce this 

12 Act in the same manner, by the same means, 

13 and with the same jurisdiction, powers and du14 ties as though all applicable terms of the Sher15 man Act (15 U.S.C. 1 et seq.), Clayton Act (15 

16 U.S.C. 12 et seq.), and Antitrust Civil Process 

17 Act (15 U.S.C. 1311 et seq.) were incorporated 

18 into and made a part of this Act; and 

19 (C) any attorney general of a State shall 

20 enforce this Act in the same manner, by the 

21 same means, and with the same jurisdiction, 

22 powers and duties as though all applicable 

23 terms of the Sherman Act (15 U.S.C. 1 et seq.) 

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


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1 were incorporated into and made a part of this 

2 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. 45). 

7 (3) COMMISSION INDEPENDENT LITIGATION AU8 THORITY.—If the Commission has reason to believe 

9 that a person violated this Act, the Commission may 

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

11 its attorneys designated by it for such purpose, to 

12 recover a civil penalty and seek other appropriate re13 lief in a district court of the United States. 

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

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

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

17 behalf of natural persons residing in such State, in 

18 any district court of the United States having juris19 diction of the defendant, and may secure any form 

20 of relief provided for in this section. 

21 (j) EMERGENCY RELIEF.— 

22 (1) IN GENERAL.—The Commission, Assistant 

23 Attorney General of the Antitrust Division, or any 

24 attorney general of a State may seek a temporary 

25 injunction requiring the covered platform operator to 


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1 take or stop taking any action for not more than 

2 120 days and the court may grant such relief if the 

3 Commission, the United States, or the attorney gen4 eral of a State proves— 

5 (A) there is a claim that a covered plat6 form operator took an action that would violate 

7 this Act; and 

8 (B) that action impairs the ability of busi9 ness users to compete with the covered platform 

10 operator. 

11 (2) EMERGENCY RELIEF.—The emergency re12 lief shall not last more than 120 days from the filing 

13 of the complaint. 

14 (3) TERMINATION.—The court shall terminate 

15 the emergency relief at any time that the covered 

16 platform operator proves that the Commission, the 

17 United States, or the attorney general of the State 

18 seeking relief under this section has not taken rea19 sonable steps to investigate whether a violation has 

20 occurred. 

21 (4) OTHER EQUITABLE RELIEF.—Nothing in 

22 this subsection prevents or limits the Commission, 

23 the United States, or any attorney general of any 

24 State from seeking other equitable relief as provided 

25 in subsection (g) of this section. 


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1 (k) STATUTE OF LIMITATIONS.—A proceeding for a 

2 violation of this section may be commenced not later than 

3 6 years after such violation occurs. 

4 SEC. 3. JUDICIAL REVIEW. 

5 (a) IN GENERAL.—Any party that is subject to a cov6 ered platform designation under section 2(e) of this Act, 

7 a decision in response to a request to remove a covered 

8 platform designation under section 2(f) of this Act, a final 

9 order issued in any district court of the United States 

10 under this Act, or a final order of the Commission issued 

11 in an administrative adjudicative proceeding under this 

12 Act may within 30 days of the issuance of such designa13 tion, decision, or order, petition for review of such designa14 tion, decision, or order in the United States Court of Ap15 peals for the District of Columbia Circuit. 

16 (b) TREATMENT OF FINDINGS.—In a proceeding for 

17 judicial review of a covered platform designation under 

18 section 2(e) of this Act, a decision in response to a request 

19 to remove a covered platform designation under section 

20 2(f) of this Act, or a final order of the Commission issued 

21 in an administrative adjudicative proceeding under this 

22 Act, the findings of the Commission or the Assistant At23 torney General as to the facts, if supported by evidence, 

24 shall be conclusive. 


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1 SEC. 4. ENFORCEMENT GUIDELINES. 

2 (a) IN GENERAL.—Not later than 1 year after the 

3 date of enactment of this Act, the Commission and the 

4 Assistant Attorney General of the Antitrust Division shall 

5 jointly issue guidelines outlining policies and practices, re6 lating to agency enforcement of this Act, including policies 

7 for determining the appropriate amount of a civil penalty 

8 to be sought under section 2(g)(1) of this Act, with the 

9 goal of promoting transparency, deterring violations, and 

10 imposing sanctions proportionate to the gravity of indi11 vidual violations. 

12 (b) UPDATES.—The Commission and the Assistant 

13 Attorney General of the Antitrust Division shall update 

14 the joint guidelines issued under subsection (a), as needed 

15 to reflect current agency policies and practices, but not 

16 less frequently than once every 4 years beginning on the 

17 date of enactment of this Act. 

18 (c) OPERATION.—The Joint Guidelines issued under 

19 this section do not confer any rights upon any person, 

20 State, or locality, nor shall they operate to bind the Com21 mission, Department of Justice, or any person, State, or 

22 locality to the approach recommended in such Guidelines. 

23 SEC. 5. RULE OF CONSTRUCTION. 

24 (a) Notwithstanding any other provision of law, 

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1 positive of whether the defendant has established an af2 firmative defense under this Act. 

3 (b) An action taken by a covered platform operator 

4 that is reasonably tailored to protect the rights of third 

5 parties under sections 106, 1101, 1201, or 1401 of title 

6 17 of the United States Code or rights actionable under 

7 sections 32 or 43 of the Lanham Act (15 U.S.C. 1114, 

8 1125), or corollary state law, shall not be considered un9 lawful conduct under subsection 2(a) or (b) of this Act. 

10 (c) Nothing in this Act shall be construed to limit 

11 any authority of the Attorney General or the Commission 

12 under the antitrust laws, the Federal Trade Commission 

13 Act (15 U.S.C. 45), or any other provision of law or to 

14 limit the application of any law. 

15 SEC. 6. SEVERABILITY. 

16 If any provision of this Act, an amendment made by 

17 this Act, or the application of such provision or amend18 ment to any person or circumstance is held to be unconsti19 tutional, the remainder of this Act and of the amendments 

20 made by this Act, and the application of the remaining 

21 provisions of this Act and amendments to any person or 

22 circumstance shall not be affected. 

Æ 


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