Google’s $5 Billion ‘Incognito Mode’ Tracking Lawsuit Set For Trial

Earlier this week, users filed a complaint against Google, claiming that the company had illegally breached the privacy of millions of people. A California judge dismissed Google’s motion for summary judgment. The reason, according to the users suing Google, is that these tracking practices persisted even when users turned on Chrome’s Incognito mode or other comparable features like Safari’s private browsing in the hopes of increasing their level of privacy. However, the reality is that private browsing mode isn’t truly private, as noted by The Verge in 2018. 

The Judge cited statements made in the Chrome privacy notice, Privacy Policy, Incognito Splash Screen, and Search & Browse Privately Help page about how Incognito mode limits the information stored or how people can control the information they share,  “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.”

According to Google spokesperson José Castañeda in a response to the ruling, provided the following statement, “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. As we clearly state each time you open a new incognito tab, websites might be able to collect information about your browsing activity during your session.”

The plaintiffs have evidence that contradicts Google’s claims, according to the judge, that the company “stores users’ regular and private browsing data in the same logs; it uses those mixed logs to send users personalized ads; and, even if the individual data points gathered are anonymous by themselves when aggregated, Google can use them to ‘uniquely identify a user with a high probability of success.'” The plaintiffs also have evidence that Google “uses mixed logs to send users personalized ads.”

The plaintiffs have demonstrated that there is a market for their browsing data, and she said in response to Google’s claim that the plaintiffs did not suffer economic harm that “Google’s claimed covert capture of the data impeded plaintiffs’ capacity to engage in that market… Finally, the Court is convinced that monetary damages alone are insufficient as a remedy given the nature of Google’s data collecting. To remedy Google’s continuous acquisition of users’ private browsing information, injunctive relief is required.

The lawsuit was launched in 2020 and sought “at least” $5 billion in damages. According to Mike Swift representing MLex, the judge’s decision was not wholly unexpected because she had previously said she would make it. Nevertheless, it is a significant one because it takes the matter closer to settlement or a trial.