[Congressional Record Volume 168, Number 198 (Tuesday, December 20, 2022)]
[Senate]
[Pages S9636-S9639]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 6567. Ms. KLOBUCHAR (for herself and Mr. Grassley) submitted an 
amendment intended to be proposed to amendment SA 6552 proposed by Mr. 
Leahy to the bill H.R. 2617, to amend section 1115 of title 31, United 
States Code, to amend the description of how performance goals are 
achieved, and for other purposes; which was ordered to lie on the 
table; as follows:

       At the appropriate place, insert the following:

[[Page S9637]]

  


           DIVISION__--AMERICAN INNOVATION AND CHOICE ONLINE

     SEC. 101. SHORT TITLE.

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

     SEC. 102. DEFINITIONS.

       (a) In General.--In this division:
       (1) Antitrust laws; person.--The terms ``antitrust laws'' 
     and ``person'' have the meanings given the terms in 
     subsection (a) of the first section of the Clayton Act (15 
     U.S.C. 12).
       (2) Business user.--The term ``business user''--
       (A) means a person that uses or is likely to use a covered 
     platform for the advertising, sale, or provision of products 
     or services, including such persons that are operating a 
     covered platform or are controlled by a covered platform 
     operator; and
       (B) does not include a person that--
       (i) is a clear national security risk; or
       (ii) is controlled by the Government of the People's 
     Republic of China or the government of a foreign adversary.
       (3) Commission.--The term ``Commission'' means the Federal 
     Trade Commission.
       (4) Control.--The term ``control'' means, with respect to a 
     person--
       (A) holding 25 percent or more of the stock of the person;
       (B) having the right to 25 percent or more of the profits 
     of the person;
       (C) in the event of the dissolution of the person, having 
     the right to 25 percent or more of the assets of the person;
       (D) if the person is a corporation, having the power to 
     designate 25 percent or more of the directors of the person;
       (E) if the person is a trust, having the power to designate 
     25 percent or more of the trustees; or
       (F) otherwise exercising substantial control over the 
     person.
       (5) Covered platform.--The term ``covered platform'' means 
     an online platform that--
       (A) has been designated as a covered platform under section 
     103(d);
       (B) is owned or controlled by a person that--
       (i) at any point during the 12 months preceding a 
     designation under section 103(d) or the 12 months preceding 
     the filing of a complaint for an alleged violation of this 
     division has at least--

       (I) 50,000,000 United States-based monthly active users on 
     the online platform; or
       (II) 100,000 United States-based monthly active business 
     users on the online platform;

       (ii) during--

       (I) the 2 years preceding a designation under section 
     103(d), or the 2 years preceding the filing of a complaint 
     for an alleged violation of this division--

       (aa) at any point, is owned or controlled by a person with 
     United States net annual sales of greater than 
     $550,000,000,000, adjusted for inflation on the basis of the 
     Consumer Price Index; or
       (bb) during any 180-day period during the 2-year period, 
     has an average market capitalization greater than 
     $550,000,000,000, adjusted for inflation on the basis of the 
     Consumer Price Index; or

       (II) the 12 months preceding a designation under section 
     103(d), or at any point during the 12 months preceding the 
     filing of a complaint for an alleged violation of this 
     division, has at least 1,000,000,000 worldwide monthly active 
     users on the online platform; and

       (iii) is a critical trading partner for the sale or 
     provision of any product or service offered on or directly 
     related to the online platform.
       (6) Critical trading partner.--The term ``critical trading 
     partner'' means a person that has the ability to restrict or 
     materially impede the access of--
       (A) a business user to the users or customers of the 
     business user; or
       (B) a business user to a tool or service that the business 
     user needs to effectively serve the users or customers of the 
     business user.
       (7) Data.--The term ``data'' includes information that is 
     collected by or provided to a covered platform or business 
     user that is linked, or reasonably linkable, to a specific--
       (A) user or customer of the covered platform; or
       (B) user or customer of a business user.
       (8) Foreign adversary.--The term ``foreign adversary'' has 
     the meaning given the term in section 8(c) of the Secure and 
     Trusted Communications Networks Act of 2019 (47 U.S.C. 
     1607(c)).
       (9) Online platform.--The term ``online platform''--
       (A) means a website, online or mobile application, 
     operating system, digital assistant, or online service that 
     enables--
       (i) 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 platform;
       (ii) the offering, advertising, sale, purchase, or shipping 
     of products or services, including software applications, 
     between and among consumers or businesses not controlled by 
     the platform operator; or
       (iii) user searches or queries that access or display a 
     volume of information; and
       (B) 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 endpoints, including 
     any capabilities that are incidental to and enable the 
     operation of the communications service.
       (10) State.--The term ``State'' means a State, the District 
     of Columbia, the Commonwealth of Puerto Rico, and any other 
     territory or possession of the United States.
       (b) Regulations.--Not later than 180 days after the date of 
     enactment of this division, the Commission, with the 
     concurrence of the Department of Justice, shall promulgate 
     regulations in accordance with section 553 of title 5, United 
     States Code, to define the term data for the purpose of 
     implementing and enforcing this division.

     SEC. 103. UNLAWFUL CONDUCT.

       (a) In General.--It shall be unlawful for a person 
     operating a covered platform in or affecting commerce to--
       (1) preference the products, services, or lines of business 
     of the covered platform operator over those of another 
     business user on the covered platform in a manner that would 
     materially harm competition;
       (2) limit the ability of the products, services, or lines 
     of business of another business user to compete on the 
     covered platform relative to the products, services, or lines 
     of business of the covered platform operator in a manner that 
     would materially harm competition;
       (3) discriminate in the application or enforcement of the 
     terms of service of the covered platform among similarly 
     situated business users in a manner that would materially 
     harm competition;
       (4) materially restrict, impede, or unreasonably delay the 
     capacity of a business user to access or interoperate with 
     the same platform, operating system, or hardware or software 
     features that are available to the products, services, or 
     lines of business of the covered platform operator that 
     compete or would compete with products or services offered by 
     business users on the covered platform, except where such 
     access would lead to a significant cybersecurity risk;
       (5) condition access to the covered platform or preferred 
     status or placement on the covered platform on the purchase 
     or use of other products or services offered by the covered 
     platform operator that are not part of or intrinsic to the 
     covered platform;
       (6) use nonpublic data that are obtained from or generated 
     on the covered platform by the activities of a business user 
     or by the interaction of a covered platform user with the 
     products or services of a business user to offer, or support 
     the offering of, the products or services of the covered 
     platform operator that compete or would compete with products 
     or services offered by business users on the covered 
     platform;
       (7) materially restrict or impede a business user from 
     accessing data generated on the covered platform by the 
     activities of the business user, or through an interaction of 
     a covered platform user with the products or services of the 
     business user, such as by establishing contractual or 
     technical restrictions that prevent the portability by the 
     business user to other systems or applications of the data of 
     the business user;
       (8) materially restrict or impede covered platform users 
     from uninstalling software applications that have been 
     preinstalled on the covered platform or changing default 
     settings that direct or steer covered platform users to 
     products or services offered by the covered platform 
     operator, unless necessary--
       (A) for the security or functioning of the covered 
     platform; or
       (B) to prevent data from the covered platform operator or 
     another business user from being transferred to the 
     Government of the People's Republic of China or the 
     government of a foreign adversary;
       (9) in connection with any covered platform user interface, 
     including search or ranking functionality offered by the 
     covered platform, treat the products, services, or lines of 
     business of the covered platform operator more favorably 
     relative to those of another business user and in a manner 
     that is inconsistent with the neutral, fair, and 
     nondiscriminatory treatment of all business users; or
       (10) 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 operator.
       (b) Affirmative Defenses.--
       (1) In general.--It shall be an affirmative defense to an 
     action under subsection (a) if the defendant establishes that 
     the conduct was reasonably tailored and reasonably necessary, 
     such that the conduct could not be achieved through 
     materially less discriminatory means, to--
       (A) prevent a violation of, or comply with, Federal or 
     State law;
       (B) protect safety, user privacy, the security of nonpublic 
     data, or the security of the covered platform; or
       (C) maintain or substantially enhance the core 
     functionality of the covered platform.
       (2) Additional affirmative defenses.--It shall be an 
     affirmative defense to an action under paragraph (4), (5), 
     (6), (7), (8), (9), or (10) of subsection (a) if the 
     defendant establishes that the conduct has not resulted in 
     and would not result in material harm to competition.
       (3) Effect of other laws.--Notwithstanding any other 
     provision of law, whether user conduct would constitute a 
     violation of section 1030 of title 18, United States Code, 
     shall have no effect on whether the defendant has established 
     an affirmative defense under this division.
       (4) Burden of proof.--The defendant has the burden of 
     proving an affirmative defense under this subsection by a 
     preponderance of the evidence.

[[Page S9638]]

       (c) Enforcement.--
       (1) In general.--Except as otherwise provided in this 
     division--
       (A) the Commission shall enforce this division in the same 
     manner, by the same means, and with the same jurisdiction, 
     powers, and duties as though all applicable terms of the 
     Federal Trade Commission Act (15 U.S.C. 41 et seq.) were 
     incorporated into and made a part of this division;
       (B) the Department of Justice shall enforce this division 
     in the same manner, by the same means, and with the same 
     jurisdiction, powers, and duties as though all applicable 
     terms of the Sherman Act (15 U.S.C. 1 et seq.), Clayton Act 
     (15 U.S.C. 12 et seq.), and Antitrust Civil Process Act (15 
     U.S.C. 1311 et seq.) were incorporated into and made a part 
     of this division; and
       (C) any attorney general of a State shall enforce this 
     division in the same manner, by the same means, and with the 
     same jurisdiction, powers, and duties as though all 
     applicable terms of the Sherman Act (15 U.S.C. 1 et seq.) and 
     the Clayton Act (15 U.S.C. 12 et seq.) were incorporated into 
     and made a part of this division.
       (2) Commission independent litigation authority.--If the 
     Commission has reason to believe that a person violated this 
     division, the Commission may commence a civil action, in its 
     own name by any of its attorneys designated by it for such 
     purpose, to recover a civil penalty and seek other 
     appropriate relief in a district court of the United States.
       (3) Parens patriae.--Any attorney general of a State may 
     bring a civil action in the name of such State for a 
     violation of this division as parens patriae on behalf of 
     natural persons residing in such State, in any district court 
     of the United States having jurisdiction of the defendant for 
     any form of relief provided for in this section.
       (4) Enforcement in federal district court.--The Commission, 
     Department of Justice, or any attorney general of a State 
     shall only be able to enforce this division through a civil 
     action brought before a district court of the United States.
       (5) Preponderance of the evidence.--The Department of 
     Justice, the Commission, or the attorney general of a State 
     shall establish a violation of this section by a 
     preponderance of the evidence.
       (6) Remedies.--
       (A) In general.--The remedies provided in this paragraph 
     are in addition to, and not in lieu of, any other remedy 
     available under Federal or State law.
       (B) Civil penalty.--Any person who violates this division 
     shall forfeit and pay to the United States a civil penalty in 
     an amount that is sufficient to deter violations of this 
     division, but not greater than 10 percent of the total United 
     States revenue of the person for the period of time the 
     violation occurred.
       (C) Injunctions.--
       (i) In general.--The Department of Justice, the Commission, 
     or the attorney general of any State may seek, and the court 
     may order, relief in equity as necessary to prevent, 
     restrain, or prohibit violations of this division.
       (ii) Temporary injunctions.--

       (I) In general.--The Commission, Department of Justice, or 
     any attorney general of a State may seek a temporary 
     injunction requiring the covered platform operator to take or 
     stop taking any action for not more than 120 days.
       (II) Grant.--The court may grant a temporary injunction 
     under this clause if the Commission, the Department of 
     Justice, or the attorney general of a State, as applicable, 
     demonstrates--

       (aa) there is a plausible claim, supported by substantial 
     evidence raising sufficiently serious questions going to the 
     merits to make them fair ground for litigation, that a 
     covered platform operator violated this division;
       (bb) that the conduct alleged to violate this division 
     materially impairs the ability of business users to compete 
     with the covered platform operator; and
       (cc) a temporary injunction would be in the public 
     interest.

       (III) Duration.--A temporary injunction under this clause 
     shall expire not later than the date that is 120 days after 
     the date on which a complaint under this subsection is filed.
       (IV) Termination.--The court shall terminate a temporary 
     injunction under this clause if the covered platform operator 
     demonstrates that--

       (aa) the Commission, the Department of Justice, or the 
     attorney general of the State seeking relief under this 
     subsection has not taken reasonable steps to investigate 
     whether a violation has occurred; or
       (bb) allowing the temporary injunction to continue would 
     harm the public interest.

       (V) Other equitable relief.--Nothing in this clause shall 
     prevent or limit the Commission, the Department of Justice, 
     or any attorney general of any State from seeking other 
     equitable relief, including the relief provided in this 
     paragraph.

       (D) Forfeiture for repeat offenders.--
       (i) In general.--If a person has engaged in a pattern or 
     practice of violating this division, the court shall consider 
     requiring, and may order, that the chief executive officer of 
     the person, and any other corporate officer of the person as 
     appropriate to deter violations of this division, forfeit to 
     the United States Treasury any compensation received by that 
     chief executive officer or corporate officer during the 12 
     months preceding the filing of a complaint for an alleged 
     violation of this division.
       (ii) Forfeiture process.--Prior to ordering any chief 
     executive officer or corporate officer to forfeit 
     compensation under subsection (I), the court shall provide 
     such chief executive officer or corporate officer with 
     reasonable notice that the court is considering ordering 
     forfeiture under this section 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 
     forfeiture.
       (7) Statute of limitations.--A proceeding for a violation 
     of this section may be commenced not later than 6 years after 
     such violation occurs.
       (8) Rules of construction.--
       (A) In general.--Nothing in subsection (a) may be 
     construed--
       (i) to require a covered platform operator to divulge or 
     license any intellectual property, including any trade 
     secrets, business secrets, or other confidential proprietary 
     business processes, owned by or licensed to the covered 
     platform operator;
       (ii) to prevent a covered platform operator from asserting 
     its preexisting rights under intellectual property law to 
     prevent the unauthorized use of any intellectual property 
     owned by or duly licensed to the covered platform operator;
       (iii) to require a covered platform operator to 
     interoperate or share data with persons or business users 
     that are on any list maintained by the Federal Government by 
     which entities--

       (I) are identified as limited or prohibited from engaging 
     in economic transactions as part of United States sanctions 
     or export-control regimes; or
       (II) have been identified as national security, 
     intelligence, or law enforcement risks;

       (iv) to prohibit a covered platform operator from promptly 
     requesting and obtaining the consent of a covered platform 
     user prior to providing access to the nonpublic, personally 
     identifiable information of the user to a covered platform 
     user under that subsection;
       (v) in a manner that would likely result in data on the 
     covered platform or data from another business user being 
     transferred to the Government of the People's Republic of 
     China or the government of a foreign adversary; or
       (vi) to impose liability on a covered platform operator 
     solely for offering--

       (I) full end-to-end encrypted messaging or full end-to-end 
     encrypted communication products or services; or
       (II) a fee-for-service subscription that provides benefits 
     to covered platform users on the covered platform.

       (B) Copyright and trademark violations.--An action taken by 
     a covered platform operator that is reasonably tailored to 
     protect the rights of third parties under section 106, 1101, 
     1201, or 1401 of title 17, United States Code, or rights 
     actionable under section 32 or 43 of the Act entitled ``An 
     Act to provide for the registration and protection of 
     trademarks used in commerce, to carry out the provisions of 
     certain international conventions, and for other purposes'', 
     approved July 5, 1946 (commonly known as the ``Lanham Act'' 
     or the ``Trademark Act of 1946'') (15 U.S.C. 1114, 1125), or 
     corollary State law, shall not be considered unlawful conduct 
     under subsection (a).
       (d) Covered Platform Designation.--
       (1) In general.--The Commission and the Department of 
     Justice may jointly, with concurrence of the other, designate 
     an online platform as a covered platform for the purpose of 
     implementing and enforcing this division, which shall--
       (A) be based on a finding that the criteria set forth in 
     section 102(a)(5)(B) are met;
       (B) be issued in writing and published in the Federal 
     Register; and
       (C) except as provided in paragraph (2), apply for a 7-year 
     period beginning on the date on which the designation is 
     issued, regardless of whether there is a change in control or 
     ownership over the covered platform.
       (2) Removal of covered platform designation.--The 
     Commission or the Department of Justice shall--
       (A) consider whether a designation of a covered platform 
     under paragraph (1) should be removed prior to the expiration 
     of the 7-year period if the covered platform operator files a 
     request with the Commission or the Department of Justice that 
     shows that the online platform no longer meets the criteria 
     set forth in section 102(a)(5)(B);
       (B) determine whether to grant a request submitted under 
     subparagraph (A) not later than 120 days after the date on 
     which the request is filed;
       (C) obtain the concurrence of the Commission or the 
     Department of Justice, as appropriate, before granting a 
     request submitted under subparagraph (A); and
       (D) publish any decision to grant or deny removal of a 
     covered platform designation in the Federal Register.
       (3) Judicial review.--Any person operating an online 
     platform that has been designated as a covered platform under 
     paragraph (1) or whose request for removal of such a 
     designation under paragraph (2) is denied may, within 30 days 
     of the issuance of such designation or decision, petition for 
     review of such designation or decision in the United States 
     Court of Appeals for the District of Columbia Circuit.

     SEC. 104. ENFORCEMENT GUIDELINES.

       (a) In General.--Not later than 270 days after the date of 
     enactment of this Act, the Commission and the Department of 
     Justice, in consultation with other relevant Federal

[[Page S9639]]

     agencies and State attorneys general, shall jointly issue 
     agency enforcement guidelines outlining policies and 
     practices relating to conduct that may materially harm 
     competition under section 103(a), agency interpretations of 
     the affirmative defenses under section 103(b), and policies 
     for determining the appropriate amount of a civil penalty to 
     be sought under section 103(c), with the goal of promoting 
     transparency, deterring violations, fostering innovation and 
     procompetitive conduct, and imposing sanctions proportionate 
     to the gravity of individual violations.
       (b) Updates.--The Commission and the Department of Justice 
     shall update the joint guidelines issued under subsection (a) 
     as needed to reflect current agency policies and practices, 
     but not less frequently than once every 4 years beginning on 
     the date of enactment of this Act.
       (c) Public Notice and Comment.--Before issuing guidelines, 
     or updates to those guidelines, under this section, the 
     Commission and the Department of Justice shall--
       (1) publish proposed guidelines in draft form; and
       (2) provide public notice and opportunity for comment for 
     not less than 60 days after the date on which the draft 
     guidelines are published.
       (d) Operation.--The joint guidelines issued under this 
     section do not--
       (1) confer any rights upon any person, State, or locality; 
     and
       (2) operate to bind the Commission, Department of Justice, 
     or any person, State, or locality to the approach recommended 
     in the guidelines.

     SEC. 105. RULE OF CONSTRUCTION.

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

     SEC. 106. SEVERABILITY.

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

     SEC. 107. EFFECTIVE DATE.

       (a) In General.--Except as provided in subsection (b), this 
     division shall take effect on the date of enactment of this 
     Act.
       (b) Exception.--Section 103(a) shall take effect on the 
     date that is 1 year after the date of enactment of this Act.
       (c) Authority.--The exception in subsection (b) shall not 
     limit the authority of the Commission or Department of 
     Justice to implement other sections of this division.
                                 ______