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).