Google Facing Allegations of Tracking Users Even While Using Incognito Mode

A class action lawsuit is approved and moving forward against tech titan Google and parent company Alphabet over allegations of secretly collecting user data even while those users are in “Incognito Mode”, which is supposed to guarantee privacy.

The problem arises due to the fact that many of the websites that a user may browse in Incognito mode are served by Google plug-ins such as Google Analytics and Google Ad Manager. This allows Google to continue tracking and collecting user data even during supposed private browsing.

This class action was originally proposed in 2020 when three users filed a complaint.

In 2020, three plaintiffs on behalf of all others similarly situated filed a complaint alleging that Google engaged in data tracking even when users were using Incognito Mode on Chrome, or private browsing in other search engines. In recent years, tensions have been on the rise in regard to internet privacy policies, particularly from big tech companies who have been known to make use of user browsing data to target individuals with similar content. In her ruling certifying the class and allowing the lawsuit to move forward, US District Judge Lucy Koh stated that Google did not inform users they would be engaging in “the alleged data collection while the user is in private browsing mode.”

Incognito Mode is a privacy feature offered on Chrome.

Google Chrome’s Help Center explanation of Incognito Mode states: “When you browse privately, other people who use the device won’t see your history. Chrome doesn’t save your browsing history or information entered in forms. Cookies and site data are remembered while you're browsing, but deleted when you exit Incognito mode.”

Despite the explanation, the lawsuit alleges that Google is not abiding by their publicly stated policy and is instead collecting user data without their permission when they are explicitly attempting to engage in private browsing. Google argued that they provided a sufficient disclaimer and sought to have the lawsuit dismissed, but Judge Lucy Koh disagreed on the grounds that the warning was insufficient and potentially inaccurate.

Google is fighting the claims, stating that users were, in fact, informed that “Incognito” doesn’t mean “invisible.”

The user activity that sparked the complaint to begin with ranges from user shopping habits to friends and data that could be of an intimate or intensely private nature. The complaint refers to this alleged tracking practice as “covert and unauthorized data collection” available from “virtually every American with a computer or phone.”

José Castañeda, a spokesperson for Google, announced that the company will be disputing the allegations in the lawsuit. Castañeda stated that user activity may be visible to websites they visit and the analytic services those websites use, and that Google was upfront with users about this policy in its Incognito setting.

The lawsuit is reportedly seeking $5,000 per user for violations of state and federal privacy laws.

The formal allegations in this lawsuit include violations of federal wiretapping laws in addition to violations of California’s Invasion of Privacy Act. The damages sought in this class action are of no small sum; the lawsuit is seeking at least $5 billion in total, with a significant portion to be paid to each class member who suffered from the alleged privacy violation.

This is not the first lawsuit Google has faced in recent months; the tech giant is also facing a notable federal antitrust lawsuit in which the Department of Justice alleges the company engaged in unfair and illegal anticompetitive business practices. A jury trial is expected to commence to evaluate the situation and decide whether or not Google can be held liable for the alleged misconduct and resulting damages, as well as to decide if an injunction requiring a policy change is called for.