SenateS. 4746119th Congress
American Innovation and Choice Online Act
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[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[S. 4746 Introduced in Senate (IS)]
<DOC>
119th CONGRESS
2d Session
S. 4746
To provide that certain discriminatory conduct by covered platforms
shall be unlawful, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
June 10, 2026
Mr. Grassley (for himself, Ms. Klobuchar, Mr. Durbin, Mr. Hawley, Mr.
Whitehouse, and Mr. Booker) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide that certain discriminatory conduct by covered platforms
shall be unlawful, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``American Innovation and Choice
Online Act''.
SEC. 2. DEFINITIONS.
(a) In General.--In this Act:
(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) Average annual gross revenues.--The term ``average
annual gross revenues'' means, with respect to a person, the
average of the total gross revenues or net sales of the person
and all entities controlled by the person for the 2 most
recently completed fiscal years, as reflected in the
consolidated financial statements of the person prepared in the
ordinary course of business.
(3) Business user.--The term ``business user''--
(A) means a person that uses or is likely to use a
systemically important platform to advertise, sell,
provide products or services, or access users and
customers, including such persons that are operating a
systemically important platform or are controlled by a
systemically important platform operator; and
(B) does not include a person that--
(i) is a clear national security risk; or
(ii) is organized under the laws of or
controlled by the Government of the People's
Republic of China or the government of another
foreign adversary.
(4) Commission.--The term ``Commission'' means the Federal
Trade Commission.
(5) 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.
(6) Data.--The term ``data'' means information that is
collected by or provided to a systemically important platform
or business user that is linked, or reasonably linkable, to a
specific--
(A) user or customer of the systemically important
platform; or
(B) user or customer of a business user.
(7) 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)).
(8) 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 amount.
(9) Monthly active user.--The term ``monthly active user''
means a unique person in the United States who, during a
calendar month, initiates an interaction with the online
platform, regardless of whether the user logs in or otherwise
authenticates themselves.
(10) Online platform.--The term ``online platform''--
(A) means a website, online or mobile application,
operating system, digital assistant, or online service
that--
(i) 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 platform;
(ii) facilitates the offering, advertising,
sale, purchase, payment, or shipping of
products or services, including software
applications, between and among consumers or
businesses not controlled by the systemically
important platform operator; or
(iii) enables user searches or queries that
access or display a large 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.
(11) Publicly traded company.--The term ``publicly traded
company''--
(A) means a company that has a principal class of
shares registered under subsection (b) or (g) of
section 12 of the Securities Exchange Act of 1934 (15
U.S.C. 78l); and
(B) includes a subsidiary of a company described in
subparagraph (A).
(12) 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 users.
(13) 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.
(14) Subscriber household.--The term ``subscriber
household'' means a household in the United States in which at
least 1 member pays for access to the online platform during a
calendar month.
(15) Systemically important platform.--
(A) In general.--The term ``systemically important
platform'' means an online platform that--
(i) is controlled by a person with average
annual gross revenues of not less than
$175,000,000,000, as adjusted under subsection
(c); and
(ii)(I) during a period of not fewer than 3
consecutive calendar months in each of the 2
consecutive 12-month periods preceding the
filing of an action under this Act, has monthly
active users in the United States equal to not
less than 34 percent of the population of the
United States over the age of 12, as determined
by the most recent decennial census of
population conducted by the Bureau of the
Census; or
(II) during a period of not fewer than 3
consecutive calendar months in each of the 2
consecutive 12-month periods preceding the
filing of an action under this Act, has
subscriber households in the United States
equal to not less than 34 percent of households
in the United States, as determined by the most
recent decennial census of population conducted
by the Bureau of the Census.
(B) Counting rules; aggregation.--In determining
the number of monthly active users and subscriber
households under this paragraph, the platform shall--
(i) exclude non-human, automated, or test
accounts to the extent identified in the
ordinary course of business;
(ii) use reasonable ordinary-course methods
to avoid double-counting the same individual or
household across multiple accounts;
(iii) the monthly active users and
subscriber households of similar platforms
controlled by the same person shall be
aggregated; and
(iv) if such aggregation causes the
threshold described in subclause (I) or (II) of
subparagraph (A)(ii) to be met, each such
similar platform shall be treated as satisfying
the applicable threshold.
(16) Systemically important platform operator.--The term
``systemically important platform operator'' means a person
that owns, controls, or operates a systemically important
platform.
(b) Regulations.--Not later than 180 days after the date of
enactment of this Act, the Commission 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
Act.
(c) Annual Adjustment of Revenue Threshold.--
(1) In general.--Beginning with the first calendar year
that begins after the date that is 1 year after the date of
enactment of this Act, and annually thereafter, the Commission
shall revise the dollar amount set forth in subsection
(a)(15)(A)(i) to reflect the percentage change in gross
national product, as most recently published by the Department
of Commerce.
(2) Publication.--The Commission shall publish any revised
dollar amount under paragraph (1) in the Federal Register.
(3) Rounding.--Any revised dollar amount under paragraph
(1) shall be rounded to the nearest $1,000,000,000.
(4) Applicability.--Any revised dollar amount published
under paragraph (2) shall apply to any action filed on or after
the effective date specified in the notice published by the
Commission.
SEC. 3. UNLAWFUL CONDUCT.
(a) Prohibitions.--
(1) Prohibition on preferencing, limiting, and
discrimination.--It shall be unlawful for a person operating a
systemically important platform in or affecting commerce to--
(A) preference the products, services, or lines of
business of the systemically important platform over
those of another business user in a manner that would
materially harm competition;
(B) limit the ability of the products, services, or
lines of business of another business user to compete
on the systemically important platform relative to the
products, services, or lines of business of the
systemically important platform operator in a manner
that would materially harm competition; or
(C) 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 competition.
(2) Prohibition on access to platform features.--It shall
be unlawful for a person operating a systemically important
platform in or affecting commerce to 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 systemically
important platform operator that compete or would compete with
products or services offered by business users on the
systemically important platform.
(3) 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 platform, any part of the systemically important
platform, 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 platform.
(4) Prohibition on access to platform data.--It shall be
unlawful for a person operating a systemically important
platform in or affecting commerce to--
(A) 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 offer, or support the offering of, 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
platform; or
(B) restrict or impede a business user from
accessing data generated on the systemically important
platform by the activities of the business user, or
through an interaction of a 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.
(5) 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
service, if the default directs or steers users to products or
services offered by the systemically important platform
operator, unless necessary--
(A) for the security or functioning of the
platform; or
(B) 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
adversary.
(6) Prohibition on ranking and presentation.--It shall be
unlawful for a person operating a systemically important
platform in or affecting commerce to treat the products,
services, or lines of business of the systemically important
platform operator more favorably relative to those of another
business user in connection with any user interface, including
search or ranking functionality offered by the platform, except
pursuant to standards that are neutral, nondiscriminatory, and
fairly applied to all similarly situated business users.
(7) 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 law.
(b) Affirmative Defenses.--
(1) Compliance with law; protection of safety, privacy, and
security; 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--
(A) necessary to--
(i) comply with Federal or State law; or
(ii) protect safety, user privacy, the
security of nonpublic data or of the platform,
or any other significant cybersecurity risk, or
to prevent fraud or spam; and
(B)(i) applied on a consistent basis;
(ii) not used as a pretext to exclude or
disadvantage competitors;
(iii) narrowly tailored in scope; and
(iv) could not be achieved through less
anticompetitive means.
(2) No harm to competition.--It shall be an affirmative
defense to an action under paragraphs (2) through (6) of
subsection (a) if the defendant establishes by a preponderance
of the evidence that the conduct has not materially harmed and
would not materially harm 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 Act.
(4) Contemporaneous records requirement.--
(A) In general.--A defendant may not rely on the
affirmative defense under paragraph (1) unless the
defendant produces records, created in the ordinary
course of business at or before the time the challenged
conduct was undertaken, that--
(i) describe the specific purpose for which
the conduct was undertaken; and
(ii) identify the material risks or harms
the conduct was intended to address.
(B) 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 business.
(c) Enforcement.--
(1) In general.--Except as otherwise provided in this Act--
(A) the Commission shall enforce this Act 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 Act;
(B) the Attorney General shall enforce this Act 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.) were incorporated into and made a part of this
Act; and
(C) any attorney general of a State may bring a
civil action in the name of such State, or as parens
patriae on behalf of natural persons residing in such
State, for a violation of this Act.
(2) Commission independent litigation authority.--If the
Commission has reason to believe that a person violated this
Act, 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 under paragraph (4), and seek other
appropriate relief, including any form of relief provided for
in paragraph (4), in a district court of the United States.
Except as otherwise provided in section 16(a)(3) of the Federal
Trade Commission Act (15 U.S.C. 56(a)(3)), the Commission shall
have exclusive authority to commence or defend, and supervise
the litigation of, 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 purpose, unless the
Commission authorizes the Attorney General to do so. The
Commission shall inform the Attorney General of the exercise of
such authority, 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 law.
(3) Enforcement in federal district court.--The Commission,
the Attorney General, or any attorney general of a State may
enforce this Act only through a civil action brought before a
district court of the United States.
(4) Remedies.--
(A) Civil penalties.--In an action brought by the
Commission, the Attorney General, or a State attorney
general under this Act, the court may impose a civil
penalty on a person that violates this Act.
(B) Civil penalty amount.--Any person who violates
this Act shall be liable to the United States for a
civil penalty, to be deposited in the Treasury of the
United States, in an amount not greater than 10
percent, and not less than 1 percent, of the total
United States revenue of the person for the period
during which the violation occurred.
(C) Injunctive and other equitable relief.--
(i) In general.--The Attorney General, the
Commission, or the attorney general of any
State may seek, and the court may order,
equitable relief as necessary to prevent,
restrain, or prohibit violations of this Act.
(ii) Temporary injunctions.--
(I) In general.--The Commission,
the Attorney General, 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 120 days.
(II) Grant.--The court may grant a
temporary injunction under this clause
if the Commission, the Attorney
General, or the attorney general of a
State, as applicable, proves--
(aa) there is a plausible
claim, supported by evidence,
that the defendant is a
systemically important platform
operator;
(bb) the defendant took an
action that would violate this
Act;
(cc) that action materially
impairs the ability of business
users to compete with the
systemically important platform
operator; and
(dd) a temporary injunction
would be in the public
interest.
(III) Termination.--The court shall
terminate a temporary injunction under
this clause if the systemically
important platform operator proves
that--
(aa) the Commission, the
Attorney General, 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.
(IV) Other equitable relief.--
Nothing in this clause shall prevent or
limit the Commission, the Attorney
General, or the attorney general of any
State from seeking, or a court from
granting, other equitable relief.
(D) Forfeiture for repeat offenders.--
(i) In general.--In addition to any other
remedy provided in this Act, if a court finds
that a person engaged in a pattern or practice
of conduct that violates this Act, the court
shall consider requiring, and may order, the
forfeiture by the chief executive officer, and
any other corporate officer as appropriate to
deter violations of this Act, of any
compensation received during the 12-month
period preceding or following the filing of a
complaint for an alleged violation of this Act.
(ii) Procedure.--Prior to ordering any
chief executive officer or corporate officer to
forfeit compensation under clause (i), 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
forfeiture.
(5) Statute of limitations.--An action under this Act shall
be barred unless commenced not later than 6 years after the
date on which the cause of action accrues.
(6) Rules of construction.--
(A) In general.--Nothing in subsection (a) may be
construed--
(i) to require a systemically important
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 systemically
important platform operator;
(ii) 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
operator;
(iii) 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 regimes, or have been
identified as national security, intelligence,
or law enforcement risks;
(iv) to prohibit a systemically important
platform operator from promptly requesting and
obtaining the consent of a user prior to
providing access to the nonpublic, personally
identifiable information of the user to another
user;
(v) 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 adversary; or
(vi) to impose liability on a systemically
important platform operator solely for
offering--
(I) full end-to-end encrypted
messaging or communication products or
services; or
(II) a fee-for-service subscription
that provides benefits to users on the
platform.
(B) 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 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).
SEC. 4. EXPEDITED ANTITRUST PROCEEDINGS FOR SYSTEMICALLY IMPORTANT
PLATFORMS.
(a) Assignment and Priority Docketing.--
(1) 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 laws,
the chief judge of the district court in which the action is
filed shall assign the matter for expedited consideration
consistent with this section.
(2) Priority.--Any such action shall be advanced on the
docket and expedited to the greatest extent practicable. The
court shall give the matter priority over all other civil
actions, except matters of the same character given equal
precedence by statute.
(3) Final judgment.--The district court shall endeavor to
issue final judgment not later than 1 year after the date on
which the complaint is filed.
(4) 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 filed, which shall expedite such appeal
to the greatest extent practicable. If the Supreme Court of the
United States grants a writ of certiorari, the Supreme Court
shall advance the appeal on the docket and expedite the appeal
to the greatest extent practicable.
(b) Use of Investigative Materials.--
(1) In general.--Any documentary material, interrogatory
response, deposition, testimony, 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 (15 U.S.C. 1311 et seq.) 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 States,
unless--
(A) the United States uses the material to support
its claims against that party; or
(B) the court orders production of the material for
good cause shown.
(2) No duplicative discovery.--The district court shall not
permit duplicative discovery of materials referenced in
paragraph (1) absent a showing of good cause.
(c) Expedited Enforcement of Civil Investigative Demands.--
(1) 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 Act, the chief judge of the district court in
which the demand is sought to be enforced shall assign the
matter for expedited consideration.
(2) Advancement.--Any such action shall be advanced on the
docket and expedited to the greatest extent practicable, and
absent extraordinary circumstances, the court shall endeavor to
issue a ruling not later than 30 days after the date on which
the petition is filed.
SEC. 5. RULE OF CONSTRUCTION.
Nothing in this Act 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;
(2) any right guaranteed by the Constitution of the United
States, including under the First Amendment; or
(3) the application of any law.
SEC. 6. SEVERABILITY.
If any provision of this Act, or the application of such provision
to any person or circumstance is held to be unconstitutional, the
remainder of this Act, and the application of the provisions of this
Act to any person or circumstance, shall not be affected.
SEC. 7. EFFECTIVE DATE.
This Act shall take effect 1 year after the date of enactment.
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