,,ii #aaith ,,congress #b;d ,session ,s4 #dgdf ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,june #aj1 #bjbf,mr4 ,grassley 7for himself1 ,ms4 ,klobuchar1 ,mr4 ,durbin1 ,mr4 ,hawley1 ,mr4 ,whitehouse1 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 ,average annual gross revenues ,the term average annual gross revenues means1 with respect to a person1 the average of the total gross revenues or net sales of the person and all entities controlled by the person for the #b most recently completed fiscal years1 as reflected in the consolidated financial statements of the person prepared in the ordinary course of business4 7#c7 ,business user ,the term business user-- 7,a7 means a person that uses or is likely to use a systemically important platform to advertise1 sell1 provide products or services1 or access users and customers1 including such persons that are operating a systemically important platform or are controlled by a systemically important 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 another foreign adversary4 7#d7 ,commission ,the term ,commission means the ,federal ,trade ,commission4 7#e7 ,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#f7 ,data ,the term data means information that is collected by or provided to a systemically important platform or business user that is linked1 or reasonably linkable1 to a specific-- 7,a7 user or customer of the systemically important platform2 or 7,b7 user or customer of a business user4 7#g7 ,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#h7 ,materially harms competition ,the term materially harms competition means any actual or reasonable risk of lessening of competition or impairing the competitive process that is more than a de minimis amount4 7#i7 ,monthly active user ,the term monthly active user means a unique person in the ,united ,states who1 during a calendar month1 initiates an interaction with the online platform1 regardless of whether the user logs in or otherwise authenticates themselves4 7#aj7 ,online platform ,the term online platform-- 7,a7 means a website1 online or mobile application1 operating system1 digital assistant1 or online service that-- 7i7 enables a user to generate or share content that can be viewed by other users on the platform or to interact with other content on or through the platform2 7ii7 facilitates the offering1 advertising1 sale1 purchase1 payment1 or shipping of products or services1 including software applications1 between and among consumers or businesses not controlled by the systemically important platform operator2 or 7iii7 enables user searches or queries that access or display a large 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#aa7 ,publicly traded company ,the term publicly traded company-- 7,a7 means a company that has a principal class of shares registered under subsection 7b7 or 7g7 of section #ab of the ,securities ,exchange ,act of #aicd 7#ae ,u4,s4,c4 #ghl72 and 7,b7 includes a subsidiary of a company described in subparagraph 7,a74 7#ab7 ,similar platform ,the term similar platform means an online platform controlled by the same person that offers substantially similar functionality or serves substantially similar use cases to users or business users4 7#ac7 ,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 7#ad7 ,subscriber household ,the term subscriber household means a household in the ,united ,states in which at least #a member pays for access to the online platform during a calendar month4 7#ae7 ,systemically important platform 7,a7 ,in general ,the term systemically important platform means an online platform that-- 7i7 is controlled by a person with average annual gross revenues of not less than #age1jjj1jjj1jjj1 as adjusted under subsection 7c72 and 7ii7 7,i7 during a period of not fewer than #c consecutive calendar months in each of the #b consecutive #ab-month periods preceding the filing of an action under this ,act1 has monthly active users in the ,united ,states equal to not less than #cd percent of the population of the ,united ,states over the age of #ab1 as determined by the most recent decennial census of population conducted by the ,bureau of the ,census2 or 7,,ii7 during a period of not fewer than #c consecutive calendar months in each of the #b consecutive #ab-month periods preceding the filing of an action under this ,act1 has subscriber households in the ,united ,states equal to not less than #cd percent of households in the ,united ,states1 as determined by the most recent decennial census of population conducted by the ,bureau of the ,census4 7,b7 ,counting rules2 aggregation ,in determining the number of monthly active users and subscriber households under this paragraph1 the platform shall-- 7i7 exclude non-human1 automated1 or test accounts to the extent identified in the ordinary course of business2 7ii7 use reasonable ordinary-course methods to avoid double-counting the same individual or household across multiple accounts2 7iii7 the monthly active users and subscriber households of similar platforms controlled by the same person shall be aggregated2 and 7iv7 if such aggregation causes the threshold described in subclause 7,i7 or 7,,ii7 of subparagraph 7,a77ii7 to be met1 each such similar platform shall be treated as satisfying the applicable threshold4 7#af7 ,systemically important platform operator ,the term systemically important platform operator means a person that owns1 controls1 or operates a systemically important platform4 7b7 ,regulations ,not later than #ahj days after the date of enactment of this ,act1 the ,commission 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 7c7 ,annual adjustment of revenue threshold 7#a7 ,in general ,beginning with the first calendar year that begins after the date that is #a year after the date of enactment of this ,act1 and annually thereafter1 the ,commission shall revise the dollar amount set forth in subsection 7a77#ae77;,a77i7 to reflect the percentage change in gross national product1 as most recently published by the ,department of ,commerce4 7#b7 ,publication ,the ,commission shall publish any revised dollar amount under paragraph 7#a7 in the ,federal ,register4 7#c7 ,rounding ,any revised dollar amount under paragraph 7#a7 shall be rounded to the nearest #a1jjj1jjj1jjj4 7#d7 ,applicability ,any revised dollar amount published under paragraph 7#b7 shall apply to any action filed on or after the effective date specified in the notice published by the ,commission4 #c4 ,unlawful conduct 7a7 ,prohibitions 7#a7 ,prohibition on preferencing1 limiting1 and discrimination ,it shall be unlawful for a person operating a systemically important platform in or affecting commerce to-- 7,a7 preference the products1 services1 or lines of business of the systemically important platform over those of another business user 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 systemically important platform relative to the products1 services1 or lines of business of the systemically important platform operator in a manner that would materially harm competition2 or 7,c7 apply or enforce the terms of service of the systemically important platform among similarly situated business users in a discriminatory manner that would materially harm competition4 7#b7 ,prohibition on access to platform features ,it shall be unlawful for a person operating a systemically important platform in or affecting commerce to 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 systemically important platform operator that compete or would compete with products or services offered by business users on the systemically important platform4 7#c7 ,prohibition on tying ,it shall be unlawful for a person operating a systemically important platform in or affecting commerce to condition access to the systemically important platform1 any part of the systemically important platform1 or preferred status or placement on the systemically important platform on the purchase or use of other products or services offered by the systemically important platform operator that are not part of or intrinsic to the systemically important platform4 7#d7 ,prohibition on access to platform data ,it shall be unlawful for a person operating a systemically important platform in or affecting commerce to-- 7,a7 use nonpublic data that are obtained from or generated on the systemically important platform by the activities of a business user or by the interaction of a platform user with the products or services of a business user to offer1 or support the offering of1 the products or services of the systemically important platform operator that compete or would compete with products or services offered by business users on the platform2 or 7,b7 restrict or impede a business user from accessing data generated on the systemically important platform by the activities of the business user1 or through an interaction of a 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 user4 7#e7 ,prohibition on user lock-in ,it shall be unlawful for a person operating a systemically important platform in or affecting commerce to restrict or impede users from changing default settings or selecting an alternative default product or service1 if the default directs or steers users to products or services offered by the systemically important platform operator1 unless necessary-- 7,a7 for the security or functioning of the platform2 or 7,b7 to prevent data from the systemically important platform operator or another business user from being transferred to the ,government of the ,people's ,republic of ,china or the government of another foreign adversary4 7#f7 ,prohibition on ranking and presentation ,it shall be unlawful for a person operating a systemically important platform in or affecting commerce to treat the products1 services1 or lines of business of the systemically important platform operator more favorably relative to those of another business user in connection with any user interface1 including search or ranking functionality offered by the platform1 except pursuant to standards that are neutral1 nondiscriminatory1 and fairly applied to all similarly situated business users4 7#g7 ,prohibition on retaliation ,it shall be unlawful for a person operating a systemically important platform in or affecting commerce to retaliate against any user or business user that raises concerns with any law enforcement authority about actual or potential violations of ,state or ,federal law4 7b7 ,affirmative defenses 7#a7 ,compliance with law2 protection of safety1 privacy1 and security2 prevention of fraud ,it shall be an affirmative defense to an action under this section if the defendant establishes by clear and convincing evidence that the conduct at issue was-- 7,a7 necessary to-- 7i7 comply with ,federal or ,state law2 or 7ii7 protect safety1 user privacy1 the security of nonpublic data or of the platform1 or any other significant cybersecurity risk1 or to prevent fraud or spam2 and 7,b7 7i7 applied on a consistent basis2 7ii7 not used as a pretext to exclude or disadvantage competitors2 7iii7 narrowly tailored in scope2 and 7iv7 could not be achieved through less anticompetitive means4 7#b7 ,no harm to competition ,it shall be an affirmative defense to an action under paragraphs 7#b7 through 7#f7 of subsection 7a7 if the defendant establishes by a preponderance of the evidence that the conduct has not materially harmed and would not materially harm 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 ,contemporaneous records requirement 7,a7 ,in general ,a defendant may not rely on the affirmative defense under paragraph 7#a7 unless the defendant produces records1 created in the ordinary course of business at or before the time the challenged conduct was undertaken1 that-- 7i7 describe the specific purpose for which the conduct was undertaken2 and 7ii7 identify the material risks or harms the conduct was intended to address4 7,b7 ,rule of construction ,nothing in this paragraph may be construed to require a defendant to create records that were not otherwise created in the ordinary course of business4 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 ,attorney ,general 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 were incorporated into and made a part of this ,act2 and 7,c7 any attorney general of a ,state may bring a civil action in the name of such ,state1 or as parens patriae on behalf of natural persons residing in such ,state1 for a violation 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 under paragraph 7#d71 and seek other appropriate relief1 including any form of relief provided for in paragraph 7#d71 in a district court of the ,united ,states4 ,except as otherwise provided in section #af7;a77#c7 of the ,federal ,trade ,commission ,act 7#ae ,u4,s4,c4 #ef7;a77#c771 the ,commission shall have exclusive authority to commence or defend1 and supervise the litigation of1 any civil action under this paragraph and any appeal of such action in its own name by any of its attorneys designated by it for such purpose1 unless the ,commission authorizes the ,attorney ,general to do so4 ,the ,commission shall inform the ,attorney ,general of the exercise of such authority1 and such exercise shall not preclude the ,attorney ,general from intervening on behalf of the ,united ,states in such action and any appeal of such action as may be otherwise provided by law4 7#c7 ,enforcement in ,federal district court ,the ,commission1 the ,attorney ,general1 or any attorney general of a ,state may enforce this ,act only through a civil action brought before a district court of the ,united ,states4 7#d7 ,remedies 7,a7 ,civil penalties ,in an action brought by the ,commission1 the ,attorney ,general1 or a ,state attorney general under this ,act1 the court may impose a civil penalty on a person that violates this ,act4 7,b7 ,civil penalty amount ,any person who violates this ,act shall be liable to the ,united ,states for a civil penalty1 to be deposited in the ,treasury of the ,united ,states1 in an amount not greater than #aj percent1 and not less than #a percent1 of the total ,united ,states revenue of the person for the period during which the violation occurred4 7,c7 ,injunctive and other equitable relief 7i7 ,in general ,the ,attorney ,general1 the ,commission1 or the attorney general of any ,state may seek1 and the court may order1 equitable relief as necessary to prevent1 restrain1 or prohibit violations of this ,act4 7ii7 ,temporary injunctions 7,i7 ,in general ,the ,commission1 the ,attorney ,general1 or any attorney general of a ,state may seek a temporary injunction requiring the systemically important 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 ,attorney ,general1 or the attorney general of a ,state1 as applicable1 proves-- 7aa7 there is a plausible claim1 supported by evidence1 that the defendant is a systemically important platform operator2 7bb7 the defendant took an action that would violate this ,act2 7cc7 that action materially impairs the ability of business users to compete with the systemically important platform operator2 and 7dd7 a temporary injunction would be in the public interest4 7,,iii7 ,termination ,the court shall terminate a temporary injunction under this clause if the systemically important platform operator proves that-- 7aa7 the ,commission1 the ,attorney ,general1 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,,iv7 ,other equitable relief ,nothing in this clause shall prevent or limit the ,commission1 the ,attorney ,general1 or the attorney general of any ,state from seeking1 or a court from granting1 other equitable relief4 7,d7 ,forfeiture for repeat offenders 7i7 ,in general ,in addition to any other remedy provided in this ,act1 if a court finds that a person engaged in a pattern or practice of conduct that violates this ,act1 the court shall consider requiring1 and may order1 the forfeiture by the chief executive officer1 and any other corporate officer as appropriate to deter violations of this ,act1 of any compensation received during the #ab-month period preceding or following the filing of a complaint for an alleged violation of this ,act4 7ii7 ,procedure ,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 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#e7 ,statute of limitations ,an action under this ,act shall be barred unless commenced not later than #f years after the date on which the cause of action accrues4 7#f7 ,rules of construction 7,a7 ,in general ,nothing in subsection 7a7 may be construed-- 7i7 to require a systemically important 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 systemically important platform operator2 7ii7 to prevent a systemically important 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 systemically important platform operator2 7iii7 to require a systemically important 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 are identified as limited or prohibited from engaging in economic transactions as part of ,united ,states sanctions or export control regimes1 or have been identified as national security1 intelligence1 or law enforcement risks2 7iv7 to prohibit a systemically important platform operator from promptly requesting and obtaining the consent of a user prior to providing access to the nonpublic1 personally identifiable information of the user to another user2 7v7 in a manner that would likely result in data on the systemically important platform or data from another business user being transferred to the ,government of the ,people's ,republic of ,china or the government of another foreign adversary2 or 7vi7 to impose liability on a systemically important platform operator solely for offering-- 7,i7 full end-to-end encrypted messaging or communication products or services2 or 7,,ii7 a fee-for-service subscription that provides benefits to users on the platform4 7,b7 ,copyright and trademark violations ,an action taken by a systemically important 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 #d4 ,expedited antitrust proceedings for systemically important platforms 7a7 ,assignment and priority docketing 7#a7 ,in general ,upon the filing of a civil action by the ,united ,states or the ,commission against a systemically important platform under this ,act or any of the antitrust laws1 the chief judge of the district court in which the action is filed shall assign the matter for expedited consideration consistent with this section4 7#b7 ,priority ,any such action shall be advanced on the docket and expedited to the greatest extent practicable4 ,the court shall give the matter priority over all other civil actions1 except matters of the same character given equal precedence by statute4 7#c7 ,final judgment ,the district court shall endeavor to issue final judgment not later than #a year after the date on which the complaint is filed4 7#d7 ,appeal ,an appeal from a final judgment under this section shall be taken to the court of appeals for the circuit in which the action was filed1 which shall expedite such appeal to the greatest extent practicable4 ,if the ,supreme ,court of the ,united ,states grants a writ of certiorari1 the ,supreme ,court shall advance the appeal on the docket and expedite the appeal to the greatest extent practicable4 7b7 ,use of investigative materials 7#a7 ,in general ,any documentary material1 interrogatory response1 deposition1 testimony1 or data obtained by the ,united ,states pursuant to a civil investigative demand or other compulsory process under this ,act or the ,antitrust ,civil ,process ,act 7#ae ,u4,s4,c4 #acaa et seq47 shall not be required to be produced to a party during discovery if that party provided the material to the ,united ,states or obtained the material during the course of the investigation of the ,united ,states1 unless-- 7,a7 the ,united ,states uses the material to support its claims against that party2 or 7,b7 the court orders production of the material for good cause shown4 7#b7 ,no duplicative discovery ,the district court shall not permit duplicative discovery of materials referenced in paragraph 7#a7 absent a showing of good cause4 7c7 ,expedited enforcement of civil investigative demands 7#a7 ,in general ,in any proceeding brought by the ,united ,states or the ,commission to enforce compliance with a civil investigative demand issued in an investigation relating to a violation of this ,act1 the chief judge of the district court in which the demand is sought to be enforced shall assign the matter for expedited consideration4 7#b7 ,advancement ,any such action shall be advanced on the docket and expedited to the greatest extent practicable1 and absent extraordinary circumstances1 the court shall endeavor to issue a ruling not later than #cj days after the date on which the petition is filed4 #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 7#b7 any right guaranteed by the ,constitution of the ,united ,states1 including under the ,first ,amendment2 or 7#c7 the application of any law4 #f4 ,severability ,if any provision of this ,act1 or the application of such provision to any person or circumstance is held to be unconstitutional1 the remainder of this ,act1 and the application of the provisions of this ,act to any person or circumstance1 shall not be affected4 #g4 ,effective date ,this ,act shall take effect #a year after the date of enactment4