Google’s bid to get rid of a class action lawsuit involving its “Incognito Mode” took a serious blow in a California court, as a judge denied the company’s request for a summary judgment and said that the consumer privacy concerns raised by the company’s data handling were fit for trial.
Google likely to face consumer privacy suit after dismissal of summary judgment
First introduced to the Chrome browser in 2008, Incognito Mode promised users that the browser would not locally store things like cookies, form data and browsing history when activated. Though it was not the first such “private browsing” mode on the market, with Safari introducing a similar option about three years earlier, it touched off a storm of PC browsers copying the feature.
The consumer privacy lawsuit alleges that Incognito Mode does not sufficiently inform users of how much of their browsing and personal information Google continues to capture when it is activated. While Google largely keeps its promise to not store or access browser information in Chrome, what it does not necessarily mention is that an assortment of its other services continue to collect data even when Incognito Mode is active; things like Google Analytics, Google Ad Manager, its other native apps that are often cued up automatically via web browsing (such as Maps), and other components of its ad network embedded in various third-party websites and smartphone apps.
When a new Incognito Mode tab is opened, Google provides a warning that websites may be able to collect browsing data. However, this warning does not specify that Google itself may be capturing a good deal of this information via alternate avenues. Internal emails uncovered by Bloomberg reporters in 2022 found employees, including some senior executives, joking about and making reference to the fact that Incognito Mode does not actually offer private browsing. Lawyers on the case say that such emails date back years.
The consumer privacy suit has filed for two separate certifications: one for Chrome users that were tracked by a third-party website containing Google code, and one for users of other popular browser types that similarly encountered Google tracking code while browsing in an equivalent of Incognito Mode.
Incognito Mode accused of violating federal wiretapping law
Incognito Mode’s utility is effectively limited to protecting users on shared computers from seeing each other’s activity. It does little to stop data collectors on the internet from gathering browsing and personal information. Google claims that users should know that, but both courts and regulators now have a record of deciding that it implies a much greater level of consumer privacy.
The lawsuit claims that at least 70% of all websites have some sort of Google service embedded in them, collecting data from users surfing in Incognito Mode. This collected data feeds unique user profiles used for targeted advertising, and can contain extremely sensitive information. Google says that these profiles are anonymized, but it has gotten into legal trouble in this area before; Google Analytics has been banned in a number of countries across the EU simply for the fact that it sends anonymized site visitor data back to its own servers, where it could potentially be connected to other collected data to identify an individual user.
The class action suit would be dated from June 1 2016 and is expected to have millions of potential claimants, with a total of $5,000 in damages per user requested due to violation of federal wiretapping and California consumer privacy laws. This could drive the final bill into the billions of dollars, though it remains to be seen if the court would be so generous with damages.
This is far from the only legal action related to consumer privacy law that Google is facing. The company settled a similar suit involving 40 states for $391 million, though that case was centered more specifically on location tracking that was not adequately disclosed to users who thought that they had opted out of it. The Arizona Attorney General’s Office brought its own similar case, which Google settled separately for $85 million. States might still address Incognito Mode on their own, and at least one has already: Texas added it to its ongoing advertising antitrust lawsuit against the company, which was initiated by the state AG in 2021 and recently won a victory in June as a judicial panel ruled that the case must be returned to the state from New York.