II 

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. 

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’’. 


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1 SEC. 2. UNLAWFUL CONDUCT. 

2 (a) VIOLATION.—It shall be unlawful for a person op3 erating a covered platform, in or affecting commerce, if 

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

5 person has engaged in conduct that would— 

6 (1) unfairly preference the covered platform op7 erator’s own products, services, or lines of business 

8 over those of another business user on the covered 

9 platform in a manner that would materially harm 

10 competition on the covered platform; 

11 (2) unfairly limit the ability of another business 

12 user’s products, services, or lines of business to com13 pete on the covered platform relative to the covered 

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

15 of business in a manner that would materially harm 

16 competition on the covered platform; or 

17 (3) discriminate in the application or enforce18 ment of the covered platform’s terms of service 

19 among similarly situated business users in a manner 

20 that may materially harm competition on the cov21 ered platform. 

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

23 a person operating a covered platform, in or affecting com24 merce, if it is shown, by a preponderance of the evidence, 

25 that the person has engaged in conduct that would— 


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1 (1) materially restrict or impede the capacity of 

2 a business user to access or interoperate with the 

3 same platform, operating system, hardware or soft4 ware features that are available to the covered plat5 form operator’s own products, services, or lines of 

6 business that compete or would compete with prod7 ucts or services offered by business users on the cov8 ered platform; 

9 (2) condition access to the covered platform or 

10 preferred status or placement on the covered plat11 form on the purchase or use of other products or 

12 services offered by the covered platform operator 

13 that are not part of or intrinsic to the covered plat14 form itself; 

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

16 or generated on the covered platform by the activi17 ties of a business user or by the interaction of a cov18 ered platform user with the products or services of 

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

20 the covered platform operator’s own products or 

21 services that compete or would compete with prod22 ucts or services offered by business users on the cov23 ered platform; 

24 (4) materially restrict or impede a business user 

25 from accessing data generated on the covered platVerDate Sep 11 2014 00:24 Mar 03, 2022 Jkt 029200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6401 E:\BILLS\S2992.RS S2992

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1 form by the activities of the business user, or 

2 through an interaction of a covered platform user 

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

4 by establishing contractual or technical restrictions 

5 that prevent the portability of the business user’s 

6 data by the business user to other systems or appli7 cations; 

8 (5) unless necessary for the security or func9 tioning of the covered platform, materially restrict or 

10 impede covered platform users from un-installing 

11 software applications that have been preinstalled on 

12 the covered platform or changing default settings 

13 that direct or steer covered platform users to prod14 ucts or services offered by the covered platform op15 erator; 

16 (6) in connection with any covered platform 

17 user interface, including search or ranking 

18 functionality offered by the covered platform, treat 

19 the covered platform operator’s own products, serv20 ices, or lines of business more favorably relative to 

21 those of another business user than they would be 

22 treated under standards mandating the neutral, fair, 

23 and non-discriminatory treatment of all business 

24 users; or 


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1 (7) retaliate against any business user or cov2 ered platform user that raises concerns with any law 

3 enforcement authority about actual or potential vio4 lations of State or Federal law. 

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

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

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

8 the covered platform operator’s intellectual property, trade 

9 or business secrets, or other confidential proprietary busi10 ness processes to a business user. 

11 (d) AFFIRMATIVE DEFENSES.— 

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

13 apply if the defendant establishes by a preponder14 ance of the evidence that the conduct described in 

15 subsections (a) was narrowly tailored, was 

16 nonpretextual, and was necessary to— 

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

18 Federal or State law; 

19 (B) protect safety, user privacy, the secu20 rity of non-public data, or the security of the 

21 covered platform; or 

22 (C) maintain or enhance the core 

23 functionality of the covered platform. 

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

25 not apply if the defendant establishes by a preponVerDate Sep 11 2014 00:24 Mar 03, 2022 Jkt 029200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6401 E:\BILLS\S2992.RS S2992

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1 derance of the evidence that the conduct described 

2 in subsection (b)— 

3 (A) has not resulted in and would not re4 sult in material harm to the competitive process 

5 by restricting or impeding legitimate activity by 

6 business users; or 

7 (B) was narrowly tailored, could not be 

8 achieved through less discriminatory means, 

9 was nonpretextual, and was necessary to— 

10 (i) prevent a violation of, or comply 

11 with, Federal or State law; 

12 (ii) protect safety, user privacy, the 

13 security of non-public data, or the security 

14 of the covered platform; or 

15 (iii) maintain or enhance the core 

16 functionality of the covered platform. 

17 (e) COVERED PLATFORM DESIGNATION.—The Fed18 eral Trade Commission and Department of Justice may 

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

20 platform for the purpose of implementing and enforcing 

21 this Act. Such designation shall— 

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

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

24 are met; 


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

2 Federal Register; and 

3 (3) apply for 7 years from its issuance regard4 less of whether there is a change in control or own5 ership over the covered platform unless the Commis6 sion or the Department of Justice removes the des7 ignation under subsection (f). 

8 (f) REMOVAL OF COVERED PLATFORM DESIGNA9 TION.—The Commission or the Department of Justice 

10 shall— 

11 (1) consider whether its designation of a cov12 ered platform under subsection (e) should be re13 moved prior to the expiration of the 7-year period if 

14 the covered platform operator files a request with 

15 the Commission or the Department of Justice, which 

16 shows that the online platform no longer meets the 

17 criteria set forth in clauses (i) through (iii) of sub18 section (h)(4); 

19 (2) determine whether to grant a request sub20 mitted under paragraph 1 not later than 120 days 

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

22 (3) obtain the concurrence of the Commission 

23 or the Department of Justice, as appropriate, before 

24 granting a request submitted under paragraph (1). 


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1 (g) REMEDIES.—The remedies provided in this sub2 section are in addition to, and not in lieu of, any other 

3 remedy available under Federal or State law. 

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

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

6 to the United States or the Commission for a civil 

7 penalty, which shall accrue to the United States 

8 Treasury, in an amount not more than 15 percent 

9 of the total United States revenue of the person for 

10 the period of time the violation occurred. 

11 (2) INJUNCTIONS.—The Assistant Attorney 

12 General of the Antitrust Division, the Commission, 

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

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

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

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

17 determines that a person has engaged in a pattern 

18 or practice of violating this Act, the court shall con19 sider requiring, and may order, that the Chief Exec20 utive Officer, and any other corporate officer as ap21 propriate to deter violations of this Act, forfeit to 

22 the United States Treasury any compensation re23 ceived by that person during the 12 months pre24 ceding or following the filing of a complaint for an 

25 alleged violation of this Act. 


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1 (h) DEFINITIONS.—In this section: 

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

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

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

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

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

7 utilize the covered platform for the sale or provision 

8 of products or services, including such persons that 

9 are operating a covered platform or are controlled by 

10 a covered platform operator. 

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

12 means the Federal Trade Commission. 

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

14 platform’’ means an online platform— 

15 (A) that has been designated as a covered 

16 platform under section 2(e); or 

17 (B) that— 

18 (i) at any point during the 12 months 

19 preceding a designation under section 2(e) 

20 or at any point during the 12 months pre21 ceding the filing of a complaint for an al22 leged violation of this Act— 

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

24 United States-based monthly active 

25 users on the online platform; or 


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1 (II) has at least 100,000 United 

2 States-based monthly active business 

3 users on the online platform; 

4 (ii) at any point during the 2 years 

5 preceding a designation under section 2(e) 

6 or at any point during the 2 years pre7 ceding the filing of a complaint for an al8 leged violation of this Act, is owned or con9 trolled by a person with United States net 

10 annual sales or a market capitalization 

11 greater than $550,000,000,000, adjusted 

12 for inflation on the basis of the Consumer 

13 Price Index; and 

14 (iii) is a critical trading partner for 

15 the sale or provision of any product or 

16 service offered on or directly related to the 

17 online platform. 

18 (5) CRITICAL TRADING PARTNER.—The term 

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

20 the ability to restrict or materially impede the access 

21 of— 

22 (A) a business user to its users or cus23 tomers; or 


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

2 that it needs to effectively serve its users or 

3 customers. 

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

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

6 1 of the Clayton Act (15 U.S.C. 12). 

7 (7) DATA.— 

8 (A) IN GENERAL.—Not later than 6 

9 months after the date of enactment of this Act, 

10 the Commission shall adopt rules in accordance 

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

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

13 implementing and enforcing this Act. 

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

15 information that is collected by or provided to 

16 a covered platform or business user that is 

17 linked, or reasonably linkable, to a specific— 

18 (i) user or customer of the covered 

19 platform; or 

20 (ii) user or customer of a business 

21 user. 

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

23 platform’’ means a website, online or mobile applica24 tion, operating system, digital assistant, or online 

25 service that— 


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1 (A) enables a user to generate content that 

2 can be viewed by other users on the platform or 

3 to interact with other content on the platform; 

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

5 payment, or shipping of products or services, 

6 including software applications, between and 

7 among consumers or businesses not controlled 

8 by the platform operator; or 

9 (C) enables user searches or queries that 

10 access or display a large volume of information. 

11 (9) CONTROL.—The term ‘‘control’’ with re12 spect to a person means— 

13 (A) holding 25 percent or more of the 

14 stock of the person; 

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

16 of the profits of the person; 

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

18 of the assets of the person, in the event of the 

19 person’s dissolution; 

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

21 the power to designate 25 percent or more of 

22 the directors of the person; 

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

24 power to designate 25 percent or more of the 

25 trustees; or 


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1 (F) otherwise exercises substantial control 

2 over the person. 

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

4 the District of Columbia, the Commonwealth of 

5 Puerto Rico, and any other territory or possession of 

6 the United States. 

7 (i) ENFORCEMENT.— 

8 (1) IN GENERAL.—Except as otherwise pro9 vided in this Act— 

10 (A) the Commission shall enforce this Act 

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

12 with the same jurisdiction, powers, and duties 

13 as though all applicable terms of the Federal 

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

15 were incorporated into and made a part of this 

16 Act; 

17 (B) the Attorney General shall enforce this 

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

19 and with the same jurisdiction, powers and du20 ties as though all applicable terms of the Sher21 man Act (15 U.S.C. 1 et seq.), Clayton Act (15 

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

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

24 into and made a part of this Act; and 


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1 (C) any attorney general of a State shall 

2 enforce this Act in the same manner, by the 

3 same means, and with the same jurisdiction, 

4 powers and duties as though all applicable 

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

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

7 were incorporated into and made a part of this 

8 Act. 

9 (2) UNFAIR METHODS OF COMPETITION.—A 

10 violation of this Act shall also constitute an unfair 

11 method of competition under section 5 of the Fed12 eral Trade Commission Act (15 U.S.C. 45). 

13 (3) COMMISSION INDEPENDENT LITIGATION AU14 THORITY.—If the Commission has reason to believe 

15 that a person violated this Act, the Commission may 

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

17 its attorneys designated by it for such purpose, to 

18 recover a civil penalty and seek other appropriate re19 lief in a district court of the United States. 

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

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

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

23 behalf of natural persons residing in such State, in 

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1 diction of the defendant, and may secure any form 

2 of relief provided for in this section. 

3 (j) EMERGENCY RELIEF.— 

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

5 Attorney General of the Antitrust Division, or any 

6 attorney general of a State may seek a temporary 

7 injunction requiring the covered platform operator to 

8 take or stop taking any action for not more than 

9 120 days and the court may grant such relief if the 

10 Commission, the United States, or the attorney gen11 eral of a State proves— 

12 (A) there is a claim that a covered plat13 form operator took an action that would violate 

14 this Act; and 

15 (B) that action impairs the ability of busi16 ness users to compete with the covered platform 

17 operator. 

18 (2) EMERGENCY RELIEF.—The emergency re19 lief shall not last more than 120 days from the filing 

20 of the complaint. 

21 (3) TERMINATION.—The court shall terminate 

22 the emergency relief at any time that the covered 

23 platform operator proves that the Commission, the 

24 United States, or the attorney general of the State 

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1 sonable steps to investigate whether a violation has 

2 occurred. 

3 (4) OTHER EQUITABLE RELIEF.—Nothing in 

4 this subsection prevents or limits the Commission, 

5 the United States, or any attorney general of any 

6 State from seeking other equitable relief as provided 

7 in subsection (g) of this section. 

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

9 violation of this section may be commenced not later than 

10 6 years after such violation occurs. 

11 SEC. 3. JUDICIAL REVIEW. 

12 (a) IN GENERAL.—Any party that is subject to a cov13 ered platform designation under section 2(e) of this Act, 

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

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

16 order issued in any district court of the United States 

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

18 in an administrative adjudicative proceeding under this 

19 Act may within 30 days of the issuance of such designa20 tion, decision, or order, petition for review of such designa21 tion, decision, or order in the United States Court of Ap22 peals for the District of Columbia Circuit. 

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

24 judicial review of a covered platform designation under 

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


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1 to remove a covered platform designation under section 

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

3 in an administrative adjudicative proceeding under this 

4 Act, the findings of the Commission or the Assistant At5 torney General as to the facts, if supported by evidence, 

6 shall be conclusive. 

7 SEC. 4. ENFORCEMENT GUIDELINES. 

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

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

10 Assistant Attorney General of the Antitrust Division shall 

11 jointly issue guidelines outlining policies and practices, re12 lating to agency enforcement of this Act, including policies 

13 for determining the appropriate amount of a civil penalty 

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

15 goal of promoting transparency, deterring violations, and 

16 imposing sanctions proportionate to the gravity of indi17 vidual violations. 

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

19 Attorney General of the Antitrust Division shall update 

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

21 to reflect current agency policies and practices, but not 

22 less frequently than once every 4 years beginning on the 

23 date of enactment of this Act. 

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

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


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1 State, or locality, nor shall they operate to bind the Com2 mission, Department of Justice, or any person, State, or 

3 locality to the approach recommended in such Guidelines. 

4 SEC. 5. RULE OF CONSTRUCTION. 

5 (a) Notwithstanding any other provision of law, 

6 whether user conduct would constitute a violation of sec7 tion 1030 of title 18 of the United States Code is not dis8 positive of whether the defendant has established an af9 firmative defense under this Act. 

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

11 that is reasonably tailored to protect the rights of third 

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

13 17 of the United States Code or rights actionable under 

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

15 1125), or corollary state law, shall not be considered un16 lawful conduct under subsection 2(a) or (b) of this Act. 

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

18 any authority of the Attorney General or the Commission 

19 under the antitrust laws, the Federal Trade Commission 

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

21 limit the application of any law. 

22 SEC. 6. SEVERABILITY. 

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

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1 tutional, the remainder of this Act and of the amendments 

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

3 provisions of this Act and amendments to any person or 

4 circumstance shall not be affected. 

5 SECTION 1. SHORT TITLE. 

6 This Act may be cited as the ‘‘American Innovation 

7 and Choice Online Act’’. 

8 SEC. 2. DEFINITIONS. 

9 (a) IN GENERAL.—In this Act: 

10 (1) ANTITRUST LAWS; PERSON.—The terms 

11 ‘‘antitrust laws’’ and ‘‘person’’ have the meanings 

12 given the terms in subsection (a) of the first section 

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

14 (2) BUSINESS USER.—The term ‘‘business 

15 user’’— 

16 (A) means a person that uses or is likely to 

17 use a covered platform for the advertising, sale, 

18 or provision of products or services, including 

19 such persons that are operating a covered plat20 form or are controlled by a covered platform op21 erator; and 

22 (B) does not include a person that— 

23 (i) is a clear national security risk; or 


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1 (ii) is controlled by the Government of 

2 the People’s Republic of China or the gov3 ernment of another foreign adversary. 

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

5 means the Federal Trade Commission. 

6 (4) CONTROL.—The term ‘‘control’’ means, with 

7 respect to a person— 

8 (A) holding 25 percent or more of the stock 

9 of the person; 

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

11 of the profits of the person; 

12 (C) in the event of the dissolution of the 

13 person, having the right to 25 percent or more 

14 of the assets of the person; 

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

16 the power to designate 25 percent or more of the 

17 directors of the person; 

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

19 power to designate 25 percent or more of the 

20 trustees; or 

21 (F) otherwise exercising substantial control 

22 over the person. 

23 (5) COVERED PLATFORM.—The term ‘‘covered 

24 platform’’ means an online platform that— 


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1 (A) has been designated as a covered plat2 form under section 3(d); 

3 (B) is owned or controlled by a person 

4 that— 

5 (i) is a publicly traded company; and 

6 (ii)(I) at any point during the 12 

7 months preceding a designation under sec8 tion 3(d) or the 12 months preceding the fil9 ing of a complaint for an alleged violation 

10 of this Act has at least— 

11 (aa) 50,000,000 United States12 based monthly active users on the on13 line platform; or 

14 (bb) 100,000 United States-based 

15 monthly active business users on the 

16 online platform; 

17 (II) during— 

18 (aa) the 2 years preceding a des19 ignation under section 3(d), or the 2 

20 years preceding the filing of a com21 plaint for an alleged violation of this 

22 Act— 

23 (AA) at any point, is owned 

24 or controlled by a person with 

25 United States net annual sales of 


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1 greater than $550,000,000,000, 

2 adjusted for inflation on the basis 

3 of the Consumer Price Index; or 

4 (BB) during any 180-day 

5 period during the 2-year period, 

6 an average market capitalization 

7 greater than $550,000,000,000, 

8 adjusted for inflation on the basis 

9 of the Consumer Price Index or 

10 (bb) the 12 months preceding a 

11 designation under section 3(d), or at 

12 any point during the 12 months pre13 ceding the filing of a complaint for an 

14 alleged violation of this Act, has at 

15 least 1,000,000,000 worldwide monthly 

16 active users on the online platform; 

17 and 

18 (III) is a critical trading partner for 

19 the sale or provision of any product or serv20 ice offered on or directly related to the on21 line platform; or 

22 (C) is owned or controlled by a person 

23 that— 

24 (i) is not a publicly traded company; 

25 and 


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1 (ii)(I) at any point during the 12 

2 months preceding a designation under sec3 tion 3(d), or the 12 months preceding the 

4 filing of a complaint for an alleged viola5 tion of this Act has at least— 

6 (aa) 50,000,000 United States7 based monthly active users on the on8 line platform; or 

9 (bb) 100,000 United States-based 

10 monthly active business users on the 

11 online platform; 

12 (II) at any point— 

13 (aa) during the 2 years preceding 

14 a designation under section 3(d), or 

15 the 2 years preceding the filing of a 

16 complaint for an alleged violation of 

17 this Act, is owned or controlled by a 

18 person with earnings, before interest, 

19 taxes, depreciation, and amortization, 

20 in the previous fiscal year of greater 

21 than $30,000,000,000, adjusted for in22 flation on the basis of the Consumer 

23 Price Index; or 

24 (bb) during the 12 months pre25 ceding a designation under section 


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1 3(d), or the 12 months preceding the 

2 filing of a complaint for an alleged 

3 violation of this Act, has at least 

4 1,000,000,000 worldwide monthly ac5 tive users on the online platform; and 

6 (III) is a critical trading partner for 

7 the sale or provision of any product or serv8 ice offered on or directly related to the on9 line platform. 

10 (6) CRITICAL TRADING PARTNER.—The term 

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

12 the ability to restrict or materially impede the access 

13 of— 

14 (A) a business user to the users or customers 

15 of the business user; or 

16 (B) a business user to a tool or service that 

17 the business user needs to effectively serve the 

18 users or customers of the business user. 

19 (7) DATA.—The term ‘‘data’’ includes informa20 tion that is collected by or provided to a covered plat21 form or business user that is linked, or reasonably 

22 linkable, to a specific— 

23 (A) user or customer of the covered plat24 form; or 

25 (B) user or customer of a business user. 


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1 (8) FOREIGN ADVERSARY.—The term ‘‘foreign 

2 adversary’’ has the meaning given the term in section 

3 8(c) of the Secure and Trusted Communications Net4 works Act of 2019 (47 U.S.C. 1607(c)). 

5 (9) ONLINE PLATFORM.—The term ‘‘online plat6 form’’ means a website, online or mobile application, 

7 operating system, digital assistant, or online service 

8 that— 

9 (A) enables a user to generate content that 

10 can be viewed by other users on the platform or 

11 to interact with other content on the platform; 

12 (B) facilitates the offering, advertising, sale, 

13 purchase, payment, or shipping of products or 

14 services, including software applications, between 

15 and among consumers or businesses not con16 trolled by the platform operator; or 

17 (C) enables user searches or queries that ac18 cess or display a large volume of information. 

19 (10) PUBLICLY TRADED COMPANY.—The term 

20 ‘‘publicly traded company’’— 

21 (A) means any company whose principal 

22 class of shares— 

23 (i) is listed on a stock exchange; and 

24 (ii) can be readily purchased or sold 

25 by the public; and 


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1 (B) includes all subsidiaries of a company 

2 descried in subparagraph (A). 

3 (11) STATE.—The term ‘‘State’’ means a State, 

4 the District of Columbia, the Commonwealth of Puer5 to Rico, and any other territory or possession of the 

6 United States. 

7 (b) REGULATIONS.—Not later than 180 days after the 

8 date of enactment of this Act, the Commission shall promul9 gate regulations in accordance with section 553 of title 5, 

10 United States Code, to define the term data for the purpose 

11 of implementing and enforcing this Act. 

12 SEC. 3. UNLAWFUL CONDUCT. 

13 (a) IN GENERAL.—It shall be unlawful for a person 

14 operating a covered platform in or affecting commerce to 

15 engage in conduct, as demonstrated by a preponderance of 

16 the evidence, that would— 

17 (1) preference the products, services, or lines of 

18 business of the covered platform operator over those of 

19 another business user on the covered platform in a 

20 manner that would materially harm competition; 

21 (2) limit the ability of the products, services, or 

22 lines of business of another business user to compete 

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1 ator in a manner that would materially harm com2 petition; 

3 (3) discriminate in the application or enforce4 ment of the terms of service of the covered platform 

5 among similarly situated business users in a manner 

6 that would materially harm competition; 

7 (4) materially restrict, impede, or unreasonably 

8 delay the capacity of a business user to access or 

9 interoperate with the same platform, operating sys10 tem, or hardware or software features that are avail11 able to the products, services, or lines of business of 

12 the covered platform operator that compete or would 

13 compete with products or services offered by business 

14 users on the covered platform; 

15 (5) condition access to the covered platform or 

16 preferred status or placement on the covered platform 

17 on the purchase or use of other products or services 

18 offered by the covered platform operator that are not 

19 part of or intrinsic to the covered platform; 

20 (6) use nonpublic data that are obtained from or 

21 generated on the covered platform by the activities of 

22 a business user or by the interaction of a covered 

23 platform user with the products or services of a busi24 ness user to offer, or support the offering of, the prod25 ucts or services of the covered platform operator that 


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1 compete or would compete with products or services 

2 offered by business users on the covered platform; 

3 (7) materially restrict or impede a business user 

4 from accessing data generated on the covered platform 

5 by the activities of the business user, or through an 

6 interaction of a covered platform user with the prod7 ucts or services of the business user, such as by estab8 lishing contractual or technical restrictions that pre9 vent the portability by the business user to other sys10 tems or applications of the data of the business user; 

11 (8) materially restrict or impede covered plat12 form users from uninstalling software applications 

13 that have been preinstalled on the covered platform or 

14 changing default settings that direct or steer covered 

15 platform users to products or services offered by the 

16 covered platform operator, unless necessary— 

17 (A) for the security or functioning of the 

18 covered platform; or 

19 (B) to prevent data from the covered plat20 form operator or another business user from 

21 being transferred to the Government of the Peo22 ple’s Republic of China or the government of an23 other foreign adversary; 

24 (9) in connection with any covered platform user 

25 interface, including search or ranking functionality 


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1 offered by the covered platform, treat the products, 

2 services, or lines of business of the covered platform 

3 operator more favorably relative to those of another 

4 business user than under standards mandating the 

5 neutral, fair, and nondiscriminatory treatment of all 

6 business users; or 

7 (10) retaliate against any business user or cov8 ered platform user that raises concerns with any law 

9 enforcement authority about actual or potential viola10 tions of State or Federal law. 

11 (b) AFFIRMATIVE DEFENSES.— 

12 (1) IN GENERAL.—It shall be an affirmative de13 fense to an action under paragraph (1), (2), or (3) of 

14 subsection (a) if the defendant establishes by a pre15 ponderance of the evidence that the conduct was nar16 rowly tailored, nonpretextual, and reasonably nec17 essary to— 

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

19 Federal or State law; 

20 (B) protect safety, user privacy, the security 

21 of nonpublic data, or the security of the covered 

22 platform; or 

23 (C) maintain or substantially enhance the 

24 core functionality of the covered platform. 


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1 (2) OTHER UNLAWFUL CONDUCT.—It shall be an 

2 affirmative defense to an action under paragraph (4), 

3 (5), (6), (7), (8), (9), or (10) of subsection (a) if the 

4 defendant establishes by a preponderance of the evi5 dence that the conduct— 

6 (A) has not resulted in and would not result 

7 in material harm to competition; or 

8 (B) was narrowly tailored, could not be 

9 achieved through less discriminatory means, was 

10 nonpretextual, and was reasonably necessary 

11 to— 

12 (i) prevent a violation of, or comply 

13 with, Federal or State law; 

14 (ii) protect safety, user privacy, the se15 curity of non-public data, or the security of 

16 the covered platform; or 

17 (iii) maintain or substantially enhance 

18 the core functionality of the covered plat19 form. 

20 (3) EFFECT OF OTHER LAWS.—Notwithstanding 

21 any other provision of law, whether user conduct 

22 would constitute a violation of section 1030 of title 

23 18, United States Code, shall have no effect on wheth24 er the defendant has established an affirmative defense 

25 under this Act. 


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1 (c) ENFORCEMENT.— 

2 (1) IN GENERAL.—Except as otherwise provided 

3 in this Act— 

4 (A) the Commission shall enforce this Act in 

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

6 the same jurisdiction, powers, and duties as 

7 though all applicable terms of the Federal Trade 

8 Commission Act (15 U.S.C. 41 et seq.) were in9 corporated into and made a part of this Act; 

10 (B) the Attorney General shall enforce this 

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

12 and with the same jurisdiction, powers, and du13 ties as though all applicable terms of the Sher14 man Act (15 U.S.C. 1 et seq.), Clayton Act (15 

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

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

17 into and made a part of this Act; and 

18 (C) any attorney general of a State shall 

19 enforce this Act in the same manner, by the same 

20 means, and with the same jurisdiction, powers, 

21 and duties as though all applicable terms of the 

22 Sherman Act (15 U.S.C. 1 et seq.) and the Clay23 ton Act (15 U.S.C. 12 et seq.) were incorporated 

24 into and made a part of this Act. 


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1 (2) COMMISSION INDEPENDENT LITIGATION AU2 THORITY.—If the Commission has reason to believe 

3 that a person violated this Act, the Commission may 

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

5 its attorneys designated by it for such purpose, to re6 cover a civil penalty and seek other appropriate relief 

7 in a district court of the United States. 

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

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

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

11 behalf of natural persons residing in such State, in 

12 any district court of the United States having juris13 diction of the defendant for any form of relief pro14 vided for in this section. 

15 (4) ENFORCEMENT IN FEDERAL DISTRICT

16 COURT.—The Commission, Attorney General, or any 

17 attorney general of a State shall only be able to en18 force this Act through a civil action brought before a 

19 district court of the United States. 

20 (5) REMEDIES.— 

21 (A) IN GENERAL.—The remedies provided 

22 in this paragraph are in addition to, and not in 

23 lieu of, any other remedy available under Fed24 eral or State law. 


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1 (B) CIVIL PENALTY.—Any person who vio2 lates this Act shall be liable to the United States 

3 or the Commission for a civil penalty, which 

4 shall accrue to the United States Treasury, in an 

5 amount not greater than 15 percent of the total 

6 United States revenue of the person for the pe7 riod of time the violation occurred. 

8 (C) INJUNCTIONS.— 

9 (i) IN GENERAL.—The Assistant Attor10 ney General in charge of the Antitrust Divi11 sion, the Commission, or the attorney gen12 eral of any State may seek, and the court 

13 may order, relief in equity as necessary to 

14 prevent, restrain, or prohibit violations of 

15 this Act. 

16 (ii) TEMPORARY INJUNCTIONS.— 

17 (I) IN GENERAL.—The Commis18 sion, Assistant Attorney General in 

19 charge of the Antitrust Division, or 

20 any attorney general of a State may 

21 seek a temporary injunction requiring 

22 the covered platform operator to take 

23 or stop taking any action for not more 

24 than 120 days. 


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1 (II) GRANT.—The court may 

2 grant a temporary injunction under 

3 this clause if the Commission, the 

4 United States, or the attorney general 

5 of a State, as applicable, proves— 

6 (aa) there is a plausible 

7 claim, supported by evidence, that 

8 a covered platform operator took 

9 an action that would violate this 

10 Act; 

11 (bb) that action materially 

12 impairs the ability of business 

13 users to compete with the covered 

14 platform operator; and 

15 (cc) a temporary injunction 

16 would be in the public interest. 

17 (III) DURATION.—A temporary 

18 injunction under this clause shall ex19 pire not later than the date that is 120 

20 days after the date on which a com21 plaint under this subsection is filed. 

22 (IV) TERMINATION.—The court 

23 shall terminate a temporary injunction 

24 under this clause if the covered plat25 form operator proves that— 


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1 (aa) the Commission, the 

2 United States, or the attorney 

3 general of the State seeking relief 

4 under this subsection has not 

5 taken reasonable steps to inves6 tigate whether a violation has oc7 curred; or 

8 (bb) allowing the temporary 

9 injunction to continue would 

10 harm the public interest. 

11 (V) OTHER EQUITABLE RELIEF.— 

12 Nothing in this clause shall prevent or 

13 limit the Commission, the United 

14 States, or any attorney general of any 

15 State from seeking other equitable re16 lief, including the relief provided in 

17 this paragraph. 

18 (D) FORFEITURE FOR REPEAT OFFEND19 ERS.—If a person has engaged in a pattern or 

20 practice of violating this Act, the court shall con21 sider requiring, and may order, that the chief ex22 ecutive officer, and any other corporate officer as 

23 appropriate to deter violations of this Act, forfeit 

24 to the United States Treasury any compensation 

25 received by that person during the 12 months 


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1 preceding or following the filing of a complaint 

2 for an alleged violation of this Act. 

3 (6) STATUTE OF LIMITATIONS.—A proceeding for 

4 a violation of this section may be commenced not 

5 later than 6 years after such violation occurs. 

6 (7) RULES OF CONSTRUCTION.— 

7 (A) IN GENERAL.—Nothing in subsection 

8 (a) may be construed— 

9 (i) to require a covered platform oper10 ator to divulge or license any intellectual 

11 property, including any trade secrets, busi12 ness secrets, or other confidential propri13 etary business processes, owned by or li14 censed to the covered platform operator; 

15 (ii) to prevent a covered platform oper16 ator from asserting its preexisting rights 

17 under intellectual property law to prevent 

18 the unauthorized use of any intellectual 

19 property owned by or duly licensed to the 

20 covered platform operator; 

21 (iii) to require a covered platform op22 erator to interoperate or share data with 

23 persons or business users that are on any 

24 list maintained by the Federal Government 

25 by which entities— 


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1 (I) are identified as limited or 

2 prohibited from engaging in economic 

3 transactions as part of United States 

4 sanctions or export-control regimes; or 

5 (II) have been identified as na6 tional security, intelligence, or law en7 forcement risks; 

8 (iv) to prohibit a covered platform op9 erator from promptly requesting and ob10 taining the consent of a covered platform 

11 user prior to providing access to the non12 public, personally identifiable information 

13 of the user to a covered platform user under 

14 that subsection; 

15 (v) in a manner that would likely re16 sult in data on the covered platform or data 

17 from another business user being transferred 

18 to the Government of the People’s Republic 

19 of China or the government of another for20 eign adversary; or 

21 (vi) to impose liability on a covered 

22 platform operator solely for offering— 

23 (I) full end-to-end encrypted mes24 saging or communication products or 


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1 services that allow communication be2 tween covered platform users; or 

3 (II) a fee-for-service subscription 

4 that provides benefits to covered plat5 form users on the covered platform. 

6 (B) COPYRIGHT AND TRADEMARK VIOLA7 TIONS.—An action taken by a covered platform 

8 operator that is reasonably tailored to protect the 

9 rights of third parties under section 106, 1101, 

10 1201, or 1401 of title 17, United States Code, or 

11 rights actionable under section 32 or 43 of the 

12 Act entitled ‘‘An Act to provide for the registra13 tion and protection of trademarks used in com14 merce, to carry out the provisions of certain 

15 international conventions, and for other pur16 poses’’, approved July 5, 1946 (commonly known 

17 as the ‘‘Lanham Act’’ or the ‘‘Trademark Act of 

18 1946’’) (15 U.S.C. 1114, 1125), or corollary 

19 State law, shall not be considered unlawful con20 duct under subsection (a). 

21 (d) COVERED PLATFORM DESIGNATION.— 

22 (1) IN GENERAL.—The Commission and Depart23 ment of Justice may jointly, with concurrence of the 

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1 form for the purpose of implementing and enforcing 

2 this Act, which shall— 

3 (A) be based on a finding that the criteria 

4 set forth in subparagraph (B) or (C) of section 

5 2(a)(5) are met; 

6 (B) be issued in writing and published in 

7 the Federal Register; and 

8 (C) except as provided in paragraph (2), 

9 apply for a 7-year period beginning on the date 

10 on which the designation is issued, regardless of 

11 whether there is a change in control or owner12 ship over the covered platform. 

13 (2) REMOVAL OF COVERED PLATFORM DESIGNA14 TION.—The Commission or the Department of Justice 

15 shall— 

16 (A) consider whether a designation of a cov17 ered platform under paragraph (1) should be re18 moved prior to the expiration of the 7-year pe19 riod if the covered platform operator files a re20 quest with the Commission or the Department of 

21 Justice that shows that the online platform no 

22 longer meets the criteria set forth in subpara23 graphs (B) and (C); 

24 (B) determine whether to grant a request 

25 submitted under subparagraph (A) not later 


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1 than 120 days after the date on which the re2 quest is filed; and 

3 (C) obtain the concurrence of the Commis4 sion or the Department of Justice, as appro5 priate, before granting a request submitted under 

6 subparagraph (A). 

7 (3) JUDICIAL REVIEW.— 

8 (A) IN GENERAL.—Any person aggrieved by 

9 a designation under paragraph (1), a decision in 

10 response to a request under paragraph (2), or a 

11 final order issued in any district court of the 

12 United States under this Act may, within 30 

13 days of the issuance of such designation, deci14 sion, or order, petition for review of such des15 ignation, decision, or order in the United States 

16 Court of Appeals for the District of Columbia 

17 Circuit. 

18 (B) TREATMENT OF FINDINGS.—In a pro19 ceeding for judicial review of a designation 

20 under paragraph (1) or a decision in response to 

21 a request under paragraph (2), the findings of 

22 fact by the Commission or the Department of 

23 Justice, if supported by evidence, shall be conclu24 sive. 


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1 SEC. 4. ENFORCEMENT GUIDELINES. 

2 (a) IN GENERAL.—Not later than 270 days after the 

3 date of enactment of this Act, the Commission and the As4 sistant Attorney General in charge of the Antitrust Divi5 sion, in consultation with other relevant Federal agencies 

6 and State attorneys general, shall jointly issue agency en7 forcement guidelines outlining policies and practices relat8 ing to conduct that may materially harm competition 

9 under section 3(a), agency interpretations of the affirmative 

10 defenses under section 3(b), and policies for determining the 

11 appropriate amount of a civil penalty to be sought under 

12 section 3(c), with the goal of promoting transparency, deter13 ring violations, fostering innovation and procompetitive 

14 conduct, and imposing sanctions proportionate to the grav15 ity of individual violations. 

16 (b) UPDATES.—The Commission and the Assistant At17 torney General in charge of the Antitrust Division shall up18 date the joint guidelines issued under subsection (a) as 

19 needed to reflect current agency policies and practices, but 

20 not less frequently than once every 4 years beginning on 

21 the date of enactment of this Act. 

22 (c) PUBLIC NOTICE AND COMMENT.—Before issuing 

23 guidelines, or updates to those guidelines, under this section, 

24 the Commission and the Assistant Attorney General in 

25 charge of the Antitrust Division shall— 


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1 (1) publish proposed guidelines in draft form; 

2 and 

3 (2) provide public notice and opportunity for 

4 comment for not less than 60 days after the date on 

5 which the draft guidelines are published. 

6 (d) OPERATION.—The joint guidelines issued under 

7 this section do not— 

8 (1) confer any rights upon any person, State, or 

9 locality; and 

10 (2) operate to bind the Commission, Department 

11 of Justice, or any person, State, or locality to the ap12 proach recommended in the guidelines. 

13 SEC. 5. RULE OF CONSTRUCTION. 

14 Nothing in this Act may be construed to limit— 

15 (1) any authority of the Attorney General or the 

16 Commission under the antitrust laws, section 5 of the 

17 Federal Trade Commission Act (15 U.S.C. 45), or 

18 any other provision of law; or 

19 (2) the application of any law. 

20 SEC. 6. SEVERABILITY. 

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

22 provision to any person or circumstance, is held to be un23 constitutional, the remainder of this Act, and the applica24 tion of the remaining provisions of this Act, to any person 

25 or circumstance, shall not be affected. 


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1 SEC. 7. EFFECTIVE DATE. 

2 (a) IN GENERAL.—Except as provided in subsection 

3 (b), this Act shall take effect on the date of enactment of 

4 this Act. 

5 (b) EXCEPTION.—Section 3(a) shall take effect on the 

6 date that is 1 year after the date of enactment of this Act. 

7 (c) AUTHORITY.—The exception in subsection (b) shall 

8 not limit the authority of the Commission or Department 

9 of Justice to implement other sections of this Act. 


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Calendar No. 301 

117TH CONGRESS 

2D SESSION S. 2992 

A BILL 

To provide that certain discriminatory conduct by 

other purposes. covered platforms shall be unlawful, and for 

MARCH 2, 2022 

Reported with an amendment 


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