S. 4746

[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.
<all>