,,ii #aahth ,,congress #ast ,session ,s4 #bjcc ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,june #ae1 #bjbc,ms4 ,klobuchar 7for herself1 ,mr4 ,grassley1 ,mr4 ,durbin1 ,mr4 ,graham1 ,mr4 ,blumenthal1 ,mr4 ,hawley1 ,ms4 ,hirono1 ,mr4 ,warner1 and ,mr4 ,booker7 introduced the following bill2 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 unlawful1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,american ,innovation and ,choice ,online ,act4 #b4 ,definitions 7a7 ,in general ,in this ,act3 7#a7 ,antitrust laws2 person ,the terms antitrust laws and person have the meanings given the terms in subsection 7a7 of the first section of the ,clayton ,act 7#ae ,u4,s4,c4 #ab74 7#b7 ,business user ,the term business user-- 7,a7 means a person that uses or is likely to use a covered platform for the advertising1 sale1 or provision of products or services1 including such persons that are operating a covered platform or are controlled by a covered platform operator2 and 7,b7 does not include a person that-- 7i7 is a clear national security risk2 or 7ii7 is organized under the laws of or controlled by the ,government of the ,people's ,republic of ,china or the government of a foreign adversary4 7#c7 ,commission ,the term ,commission means the ,federal ,trade ,commission4 7#d7 ,control ,the term control means1 with respect to a person-- 7,a7 holding #be percent or more of the stock of the person2 7,b7 having the right to #be percent or more of the profits of the person2 7,c7 in the event of the dissolution of the person1 having the right to #be percent or more of the assets of the person2 7,d7 if the person is a corporation1 having the power to designate #be percent or more of the directors of the person2 7,e7 if the person is a trust1 having the power to designate #be percent or more of the trustees2 or 7,f7 otherwise exercising substantial control over the person4 7#e7 ,covered platform ,the term covered platform means an online platform that-- 7,a7 has been designated as a covered platform under section #c7;d72 or 7,b7 is owned or controlled by a person that-- 7i7 at any point during the #ab months preceding a designation under section #c7;d7 or the #ab months preceding the filing of a complaint for an alleged violation of this ,act has at least-- 7,i7 #ej1jjj1jjj ,united ,states-based monthly active users on the online platform2 or 7,,ii7 #ajj1jjj ,united ,states-based monthly active business users on the online platform2 7ii7 during-- 7,i7 the #b years preceding a designation under section #c7;d71 or the #b years preceding the filing of a complaint for an alleged violation of this ,act-- 7aa7 at any point1 is owned or controlled by a person with ,united ,states net annual sales of greater than #eej1jjj1jjj1jjj1 adjusted for inflation on the basis of the ,consumer ,price ,index2 or 7bb7 during any #ahj-;day period during the #b-year period1 has an average market capitalization greater than #eej1jjj1jjj1jjj1 adjusted for inflation on the basis of the ,consumer ,price ,index2 or 7,,ii7 the #ab months preceding a designation under section #c7;d71 or at any point during the #ab months preceding the filing of a complaint for an alleged violation of this ,act1 has at least #a1jjj1jjj1jjj worldwide monthly active users on the online platform2 and 7iii7 is a critical trading partner for the sale or provision of any product or service offered on or directly related to the online platform4 7#f7 ,critical trading partner ,the term critical trading partner means a person that has the ability to restrict or materially impede the access of-- 7,a7 a business user to the users or customers of the business user2 or 7,b7 a business user to a tool or service that the business user needs to effectively serve the users or customers of the business user4 7#g7 ,data ,the term data includes information that is collected by or provided to a covered platform or business user that is linked1 or reasonably linkable1 to a specific-- 7,a7 user or customer of the covered platform2 or 7,b7 user or customer of a business user4 7#h7 ,foreign adversary ,the term foreign adversary has the meaning given the term in section #h7;c7 of the ,secure and ,trusted ,communications ,networks ,act of #bjai 7#dg ,u4,s4,c4 #afjg7;c774 7#i7 ,online platform ,the term online platform-- 7,a7 means a website1 online or mobile application1 operating system1 digital assistant1 or online service that enables-- 7i7 a user to generate or share content that can be viewed by other users on the platform or to interact with other content on the platform2 7ii7 the offering1 advertising1 sale1 purchase1 or shipping of products or services1 including software applications1 between and among consumers or businesses not controlled by the platform operator2 or 7iii7 user searches or queries that access or display a volume of information2 and 7,b7 does not include a service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all internet endpoints1 including any capabilities that are incidental to and enable the operation of the communications service4 7#aj7 ,state ,the term ,state means a ,state1 the ,district of ,columbia1 the ,commonwealth of ,puerto ,rico1 and any other territory or possession of the ,united ,states4 7b7 ,regulations ,not later than #ahj days after the date of enactment of this ,act1 the ,commission1 with the concurrence of the ,department of ,justice1 shall promulgate regulations in accordance with section #eec of title #e1 ,united ,states ,code1 to define the term data for the purpose of implementing and enforcing this ,act4 #c4 ,unlawful conduct 7a7 ,in general ,it shall be unlawful for a person operating a covered platform in or affecting commerce to-- 7#a7 preference the products1 services1 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 competition2 7#b7 limit the ability of the products1 services1 or lines of business of another business user to compete on the covered platform relative to the products1 services1 or lines of business of the covered platform operator in a manner that would materially harm competition2 7#c7 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 competition2 7#d7 materially restrict1 impede1 or unreasonably delay the capacity of a business user to access or interoperate with the same platform1 operating system1 or hardware or software features that are available to the products1 services1 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 platform1 except where such access would lead to a significant cybersecurity risk2 7#e7 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 platform2 7#f7 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 offer1 or support the offering of1 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 platform2 7#g7 materially restrict or impede a business user from accessing data generated on the covered platform by the activities of the business user1 or through an interaction of a covered platform user with the products or services of the business user1 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 user2 7#h7 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 operator1 unless necessary-- 7,a7 for the security or functioning of the covered platform2 or 7,b7 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 a foreign adversary2 7#i7 in connection with any covered platform user interface1 including search or ranking functionality offered by the covered platform1 treat the products1 services1 or lines of business of the covered platform operator more favorably relative to those of another business user and in a manner that is inconsistent with the neutral1 fair1 and nondiscriminatory treatment of all business users2 or 7#aj7 retaliate against any business user or covered platform user that raises good-faith concerns with any law enforcement authority about actual or potential violations of ,state or ,federal law on the covered platform or by the covered platform operator4 7b7 ,affirmative defenses 7#a7 ,in general ,it shall be an affirmative defense to an action under subsection 7a7 if the defendant establishes that the conduct was reasonably tailored and reasonably necessary1 such that the conduct could not be achieved through materially less discriminatory means1 to-- 7,a7 prevent a violation of1 or comply with1 ,federal or ,state law2 7,b7 protect safety1 user privacy1 the security of nonpublic data1 or the security of the covered platform2 or 7,c7 maintain or substantially enhance the core functionality of the covered platform4 7#b7 ,additional affirmative defenses ,it shall be an affirmative defense to an action under paragraph 7#d71 7#e71 7#f71 7#g71 7#h71 or 7#i7 of subsection 7a7 if the defendant establishes that the conduct has not resulted in and would not result in material harm to competition4 7#c7 ,effect of other laws ,notwithstanding any other provision of law1 whether user conduct would constitute a violation of section #ajcj of title #ah1 ,united ,states ,code1 shall have no effect on whether the defendant has established an affirmative defense under this ,act4 7#d7 ,burden of proof ,the defendant has the burden of proving an affirmative defense under this subsection by a preponderance of the evidence4 7c7 ,enforcement 7#a7 ,in general ,except as otherwise provided in this ,act-- 7,a7 the ,commission shall enforce this ,act in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #da et seq47 were incorporated into and made a part of this ,act2 7,b7 the ,department of ,justice shall enforce this ,act in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms of the ,sherman ,act 7#ae ,u4,s4,c4 #a et seq471 ,clayton ,act 7#ae ,u4,s4,c4 #ab et seq471 and ,antitrust ,civil ,process ,act 7#ae ,u4,s4,c4 #acaa et seq47 were incorporated into and made a part of this ,act2 and 7,c7 any attorney general of a ,state shall enforce this ,act in the same manner1 by the same means1 and with the same jurisdiction1 powers1 and duties as though all applicable terms of the ,sherman ,act 7#ae ,u4,s4,c4 #a et seq47 and the ,clayton ,act 7#ae ,u4,s4,c4 #ab et seq47 were incorporated into and made a part of this ,act4 7#b7 ,commission independent litigation authority ,if the ,commission has reason to believe that a person violated this ,act1 the ,commission may commence a civil action1 in its own name by any of its attorneys designated by it for such purpose1 to recover a civil penalty and seek other appropriate relief in a district court of the ,united ,states4 7#c7 ,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 ,state1 in any district court of the ,united ,states having jurisdiction of the defendant for any form of relief provided for in this section4 7#d7 ,enforcement in federal district court ,the ,commission1 ,department of ,justice1 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 ,states4 7#e7 ,preponderance of the evidence ,the ,department of ,justice1 the ,commission1 or the attorney general of a ,state shall establish a violation of this section by a preponderance of the evidence4 7#f7 ,remedies 7,a7 ,in general ,the remedies provided in this paragraph are in addition to1 and not in lieu of1 any other remedy available under ,federal or ,state law4 7,b7 ,civil penalty ,any person who violates this ,act shall forfeit and pay to the ,united ,states a civil penalty in an amount that is sufficient to deter violations of this ,act1 but not greater than #aj percent of the total ,united ,states revenue of the person for the period of time the violation occurred4 7,c7 ,injunctions 7i7 ,in general ,the ,department of ,justice1 the ,commission1 or the attorney general of any ,state may seek1 and the court may order1 relief in equity as necessary to prevent1 restrain1 or prohibit violations of this ,act4 7ii7 ,temporary injunctions 7,i7 ,in general ,the ,commission1 ,department of ,justice1 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 #abj days4 7,,ii7 ,grant ,the court may grant a temporary injunction under this clause if the ,commission1 the ,department of ,justice1 or the attorney general of a ,state1 as applicable1 demonstrates-- 7aa7 there is a plausible claim1 supported by substantial evidence raising sufficiently serious questions going to the merits to make them fair ground for litigation1 that a covered platform operator violated this ,act2 7bb7 that the conduct alleged to violate this ,act materially impairs the ability of business users to compete with the covered platform operator2 and 7cc7 a temporary injunction would be in the public interest4 7,,iii7 ,duration ,a temporary injunction under this clause shall expire not later than the date that is #abj days after the date on which a complaint under this subsection is filed4 7,,iv7 ,termination ,the court shall terminate a temporary injunction under this clause if the covered platform operator demonstrates that-- 7aa7 the ,commission1 the ,department of ,justice1 or the attorney general of the ,state seeking relief under this subsection has not taken reasonable steps to investigate whether a violation has occurred2 or 7bb7 allowing the temporary injunction to continue would harm the public interest4 7,v7 ,other equitable relief ,nothing in this clause shall prevent or limit the ,commission1 the ,department of ,justice1 or any attorney general of any ,state from seeking other equitable relief1 including the relief provided in this paragraph4 7,d7 ,forfeiture for repeat offenders 7i7 ,in general ,if a person has engaged in a pattern or practice of violating this ,act1 the court shall consider requiring1 and may order1 that the chief executive officer of the person1 and any other corporate officer of the person as appropriate to deter violations of this ,act1 forfeit to the ,united ,states ,treasury any compensation received by that chief executive officer or corporate officer during the #ab months preceding the filing of a complaint for an alleged violation of this ,act4 7ii7 ,forfeiture process ,prior to ordering any chief executive officer or corporate officer to forfeit compensation under clause 7i71 the court shall provide such chief executive officer or corporate officer with reasonable notice that the court is considering ordering forfeiture under this subparagraph and provide an opportunity for such chief executive officer or corporate officer to appear and be heard before the court at a hearing on such potential forfeiture4 7#g7 ,statute of limitations ,a proceeding for a violation of this section may be commenced not later than #f years after such violation occurs4 7#h7 ,rules of construction 7,a7 ,in general ,nothing in subsection 7a7 may be construed-- 7i7 to require a covered platform operator to divulge or license any intellectual property1 including any trade secrets1 business secrets1 or other confidential proprietary business processes1 owned by or licensed to the covered platform operator2 7ii7 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 operator2 7iii7 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-- 7,i7 are identified as limited or prohibited from engaging in economic transactions as part of ,united ,states sanctions or export-control regimes2 or 7,,ii7 have been identified as national security1 intelligence1 or law enforcement risks2 7iv7 to prohibit a covered platform operator from promptly requesting and obtaining the consent of a covered platform user prior to providing access to the nonpublic1 personally identifiable information of the user to a covered platform user under that subsection2 7v7 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 a foreign adversary2 or 7vi7 to impose liability on a covered platform operator solely for offering-- 7,i7 full end-to-end encrypted messaging or full end-to-end encrypted communication products or services2 or 7,,ii7 a fee-for-service subscription that provides benefits to covered platform users on the covered platform4 7,b7 ,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 #ajf1 #aaja1 #abja1 or #adja of title #ag1 ,united ,states ,code1 or rights actionable under section #cb or #dc of the ,act entitled ,an ,act to provide for the registration and protection of trademarks used in commerce1 to carry out the provisions of certain international conventions1 and for other purposes1 approved ,july #e1 #aidf 7commonly known as the ,lanham ,act or the ,trademark ,act of #aidf7 7#ae ,u4,s4,c4 #aaad1 #aabe71 or corollary ,state law1 shall not be considered unlawful conduct under subsection 7a74 7d7 ,covered platform designation 7#a7 ,in general ,the ,commission and the ,department of ,justice may jointly1 with concurrence of the other1 designate an online platform as a covered platform for the purpose of implementing and enforcing this ,act1 which shall-- 7,a7 be based on a finding that the criteria set forth in section #b7;a77#e77;,b7 are met2 7,b7 be issued in writing and published in the ,federal ,register2 and 7,c7 except as provided in paragraph 7#b71 apply for a #g-year period beginning on the date on which the designation is issued1 regardless of whether there is a change in control or ownership over the covered platform4 7#b7 ,removal of covered platform designation ,the ,commission or the ,department of ,justice shall-- 7,a7 consider whether a designation of a covered platform under paragraph 7#a7 should be removed prior to the expiration of the #g-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 section #b7;a77#e77;,b72 7,b7 determine whether to grant a request submitted under subparagraph 7,a7 not later than #abj days after the date on which the request is filed2 7,c7 obtain the concurrence of the ,commission or the ,department of ,justice1 as appropriate1 before granting a request submitted under subparagraph 7,a72 and 7,d7 publish any decision to grant or deny removal of a covered platform designation in the ,federal ,register4 7#c7 ,judicial review ,any person operating an online platform that has been designated as a covered platform under paragraph 7#a7 or whose request for removal of such a designation under paragraph 7#b7 is denied may1 within #cj days of the issuance of such designation or decision1 petition for review of such designation or decision in the ,united ,states ,court of ,appeals for the ,district of ,columbia ,circuit4 #d4 ,enforcement guidelines 7a7 ,in general ,not later than #bgj days after the date of enactment of this ,act1 the ,commission and the ,department of ,justice1 in consultation with other relevant ,federal agencies and ,state attorneys general1 shall jointly issue agency enforcement guidelines outlining policies and practices relating to conduct that may materially harm competition under section #c7;a71 agency interpretations of the affirmative defenses under section #c7;b71 and policies for determining the appropriate amount of a civil penalty to be sought under section #c7;c71 with the goal of promoting transparency1 deterring violations1 fostering innovation and procompetitive conduct1 and imposing sanctions proportionate to the gravity of individual violations4 7b7 ,updates ,the ,commission and the ,department of ,justice shall update the joint guidelines issued under subsection 7a7 as needed to reflect current agency policies and practices1 but not less frequently than once every #d years beginning on the date of enactment of this ,act4 7c7 ,public notice and comment ,before issuing guidelines1 or updates to those guidelines1 under this section1 the ,commission and the ,department of ,justice shall-- 7#a7 publish proposed guidelines in draft form2 and 7#b7 provide public notice and opportunity for comment for not less than #fj days after the date on which the draft guidelines are published4 7d7 ,operation ,the joint guidelines issued under this section do not-- 7#a7 confer any rights upon any person1 ,state1 or locality2 or 7#b7 operate to bind the ,commission1 ,department of ,justice1 or any person1 ,state1 or locality to the approach recommended in the guidelines4 #e4 ,rule of construction ,nothing in this ,act may be construed to limit-- 7#a7 any authority of the ,department of ,justice or the ,commission under the antitrust laws1 section #e of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #de71 or any other provision of law2 or 7#b7 the application of any law4 #f4 ,severability ,if any provision of this ,act1 or the application of such provision to any person or circumstance1 is held to be unconstitutional1 the remainder of this ,act1 and the application of the remaining provisions of this ,act1 to any person or circumstance1 shall not be affected4 #g4 ,effective date 7a7 ,in general ,except as provided in subsection 7b71 this ,act shall take effect on the date of enactment of this ,act4 7b7 ,exception ,section #c7;a7 shall take effect on the date that is #a year after the date of enactment of this ,act4 7c7 ,authority ,the exception in subsection 7b7 shall not limit the authority of the ,commission or ,department of ,justice to implement other sections of this ,act4