The “Incognito Mode” of Google’s Chrome browser has been under legal fire for failure to make the company’s internal tracking of users entirely clear. A proposed settlement of a class action suit would lead to the company deleting the browsing data of some 136 million users, or “billions” of records in total.
The settlement would also limit Google’s data collection going forward and require the company to be more transparent about how it tracks users through third-party websites. But while the settlement is expected to cost Google about $5 billion in lost advertising revenue, it would not provide the plaintiffs with any damages.
Mass amount of Chrome browsing data slated for deletion
The class action suit, Brown v. Google, was first filed in 2020. The plaintiffs took issue with Google’s promise of Incognito Mode offering “private browsing,” accusing the company of failing to disclose that Google’s own web-spanning advertising network was still tracking and logging browsing data about them across numerous third-party sites.
Google previously attempted to have the case thrown out, but in 2021 a US District Judge court judge ruled that the company had failed to adequately notify users of its collection of browsing data. Google’s defense has always been that Incognito Mode never promises to make the user invisible or to stop data from making its way to Google’s servers; it merely keeps activity from being saved to browsers or locally on user devices.
The settlement would impact all Incognito Mode data collected from June 1, 2016 to before the start of 2024. Google says that it would delete most of this browsing data, but in some cases would “de-identify” records instead. Google would also agree to change its disclosures going forward to make it clearer that the browser is still collecting user data, and for the next five years it would be required to block third-party cookies by default in Chrome.
A statement from Google’s spokesperson José Castañeda indicates that the company sees the settlement as a win, since the total loss is an abstract estimate of lost revenue rather than a direct payout. The $5 billion estimate is what the plaintiffs originally sought in damages, and this settlement would not provide them with any monetary compensation. However, impacted parties in California remain able to file individual claims in state court. Google opted not to oppose the motion for final approval, so the order approving the settlement is expected to be issued in July.
Incognito Mode failed to live up to user expectations
Internal emails obtained from Google executives have not helped the Incognito Mode case, with the chief marketing officer and others at times directly communicating with CEO Sundar Pichai about the validity of advertising the service as “private.” Some of the communications referred to the language used to describe the mode as necessarily “fuzzy” and “hedging” given that Google was still logging detailed browsing data. Other employees called it “misleading” and questioned how ethical it was in conversations. Engineers also pushed back internally against the service’s “spy in a trenchcoat” logo as providing users with a false sense of being invisible to any sort of internet tracking.
Incognito Mode has been available in browsers for well over a decade, and has consistently promised users that they have control over what browsing data is shared. But Chrome has continued to share data with advertising tools like Google Ad Manager and Google Analytics, which are nearly omnipresent as components of third-party websites all across the internet.
All of this comes amidst Google’s gradual transition to cookie-free browsing, which it has focused on Chrome thus far before rolling out to other products. 1% of Chrome users saw third-party cookies deprecated at the start of 2024, and all users are expected to be off of cookies by the third quarter of the year.
Several other major browsers offer their own Incognito Mode or “private browsing” option, but usually have similar limits to their function. For example, Apple’s Safari similarly stops any local storage of browsing data in the app, but does not screen user IP addresses or prevent Apple from viewing user traffic. Edge, Firefox and Opera offer similar private browsing modes with similar limitations. Google’s situation is unique in not offering users any way to opt out of certain types of data collection, however, at least without the use of third-party plugins and unofficial modifications of its software.
Private browsing modes have typically been more about keeping individual activity private on shared computers, such as at work or on a family device. Google’s trouble has stemmed from marketing that promised (or at least implied) more than this, but it remains to be seen if it will end up paying any sort of financial penalty beyond theoretical loss of revenue.
