Google Loses Appeal in $5 Billion Lawsuit Over ‘Incognito Mode’ Tracking

A California judge junked Monday the request of Google for summary judgment in a lawsuit filed by users who claimed that the tech firm misled them into believing their privacy was being protected during incognito mode in the Chrome browser.

Junking Google's Plea

According to The Verge, the complainant alleged that Google's cookies, analytics, and tools in apps kept tracking internet browsing activity even after users turned on incognito mode in Chrome or other same features like Safari's private browsing, expecting a heightened degree of privacy.

Incognito and other similar privacy modes are expected not to track and save data about websites users visit and online searches. However, as The Verge reported in 2018, the reality contradicts this notion that private browsing modes provide absolute privacy.

In her ruling, Judge Yvonne Gonzalez-Rogers referred to statements in the Chrome privacy notice, Privacy Policy, Incognito Splash Screen, and Search & Browse Privately Help page. These statements discussed how incognito mode limits the stored information or how the users can control the information they share.

In her assessment, the judge noted that when considered collectively, there's a matter open for trial: whether these written statements establish a legally binding commitment from Google not to gather user data during private browsing sessions.

"Taken as a whole, a triable issue exists as to whether these writings created an enforceable promise that Google would not collect users' data while they browsed privately," Gonzalez-Rogers wrote.

Google's Response

Responding to the court's decision, Google spokesperson José Castañeda told The Verge about the company's stance against the allegations.

"We strongly dispute these claims and we will defend ourselves vigorously against them. Incognito mode in Chrome gives you the choice to browse the internet without your activity being saved to your browser or device," Castañeda noted.

Castañeda added that they clearly state each time a new incognito tab opens, "websites might be able to collect information" about the user's browsing activity during that session.

Another concern that goes against Google's arguments, which the judge cited, was that the complainants have evidence that the tech company stores users' regular and private browsing data in the same logs.

Google allegedly leverages these integrated logs for personalized ad targeting. Although the collected individual data points are seemingly anonymized, Google can reportedly use them to identify a user "with a high probability of success," when aggregated.

Pursuing Money Damages

The lawsuit filed by five users more than two years ago in the Northern District Court of California is seeking "at least" $5 billion in damages.

Plaintiffs are collectively pursuing monetary damages through a class action against Google's parent company Alphabet Inc. but have faced an initial setback.

Reuters reported that consumers suing Alphabet Inc. over its data collection practices lost their appeal earlier this year to pursue monetary damages.

The 9th U.S. Circuit Court of Appeals in San Francisco has denied their bid to appeal a lower court decision last year that junked class-action status for monetary damages claims against Google.

According to Forbes, the lawsuit seeks damages of $5,000 for each user who has used incognito mode since June 1, 2016.