Explainer: $5bn lawsuit against Google over Incognito mode

Google logo crushed under gavel.

Browsing in “Incognito mode” while using Google’s Chrome browser may give the illusion of privacy, but the fact is that it does not prevent others, including Google, from tracking you. And now, a U.S. judge has allowed a class-action suit against Google’s tracking practices pertaining to Incognito mode to go to trial.

What is Chrome’s Incognito mode? 

When you browse the web with Chrome, users may choose to use an “Incognito” window, also known as “privacy browsing mode.” In Incognito mode, Chrome does not save browsing history, cookies and site data, information entered in forms, and permissions you give to websites. This means that your activity is not saved on your device, thereby preventing others with access to your device, such as family members, from seeing your searches and stopping cookies from identifying you.

Chrome Incognito mode.However, what you do in Incognito mode on Chrome can still be traced back to you, including by Google itself. For example, Incognito sessions are recorded in Google Analytics and provided to website administrators. 

Read more: What doesn’t Incognito mode protect against?

Why are Chrome users suing Google over Incognito mode?

In June 2020, three Google users filed a complaint in California saying that the company had misled them about Incognito browsing. They claimed that Google continued to collect browsing and web activity data even after directing users to Incognito mode to keep their activities private. 

“Plaintiffs and Class members had a reasonable expectation of privacy that when using a browser while in ‘private browsing mode,’ Google would not intercept, collect, record, disclose, or otherwise misuse their personal communications,” the complaint reads.

The document also takes aim at Google’s use of data, claiming it collects data “for its own nefarious purposes, and not those of the consumer.”

In terms of legality, the users contend that Google’s server-side tracking is in violation of federal and state wiretap laws and consumers’ right to privacy.

“Google’s practices infringe upon users’ privacy; intentionally deceive consumers; give Google and its employees power to learn intimate details about individuals’ lives, interests, and internet usage; and make Google ‘one stop shopping’ for any government, private, or criminal actor who wants to undermine individuals’ privacy, security, or freedom,” the complaint says.

What is Google’s argument?

The complaint has been heavily contested by Google, which has said that the search engine clearly details its data collection practices in its privacy policy. 

“Google also makes clear that ‘Incognito’ does not mean ‘invisible,’ and that the user’s activity during that session may be visible to websites they visit, and any third-party analytics or ads services the visited websites use,” Google wrote in a court filing.

What did the court say?

After arguments from both sides, U.S. District Judge Lucy Koh of San Jose, California, ruled last week that the lawsuit can go forward. The lawsuit claims that Google should pay 5,000 USD per infraction, which would amount to at least 5 billion USD for the “likely” millions of users. 

“The court concludes that Google did not notify users that Google engages in the alleged data collection while the user is in private browsing mode,” Koh wrote.

Legal challenges mount for Google

A potential 5 billion USD penalty might be the stiffest fine Google faces, but the company has had to respond to a litany of complaints in recent months.

A class-action lawsuit filed by users in Canada and coordinated by several law firms has a familiar ring to it: excessive tracking and surveillance. The claim says that Google violates consumer protection and competition laws by misrepresenting its privacy and data practices. The case has been filed at a court in British Columbia and is awaiting approval.

In October, Google settled another lawsuit after its now-defunct Google Plus service exposed the private data of thousands of people due to a software bug in 2018. It agreed to pay up to 7.5 million USD to those affected.

And a private antitrust lawsuit filed by the administrator of a sweepstakes website alleges that Google uses its unfair advantage in online advertising to monopolize the market. Some analysts believe that many more of these lawsuits are expected and may pose a challenge to Big Tech.

Did Google mislead users about Incognito mode? Let us know your thoughts in the comments!

Read more: How to delete everything Google knows about you

A phone with a padlock.
Enjoy a safer online experience with powerful privacy protection
What is a VPN?
I like to think about the impact that the internet has on humanity. In my free time, I'm wolfing down pasta.