A judge in California ruled that Google must face a class-action lawsuit claiming the technology conglomerate continued to gather data from users who used “incognito” mode on the Chrome browser. There have been questions about how much data the tech giant collects from users through advertisements, cookies, and other data collection services.
Google offered incognito mode as an option in the Chrome browser. Some users claim it is not protecting data as advertised and filed a class-action lawsuit against Alphabet in June 2020. The lawsuit contends that users who used incognito mode still had their information tracked and intercepted by Google despite the browser claiming otherwise. The lawsuit seeks at least $5 billion in compensation or $5,000 for each user potentially affected by this practice.
The lawsuit claims that “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, a private, or criminal actor who wants to undermine individuals’ privacy, security, or freedom.”
A Google spokesperson told Bloomberg that “we strongly dispute these claims, and we will defend ourselves vigorously against them.”
A significant question of this lawsuit is determining what incognito mode does. Ray Walsh, a researcher for ProPrivacy.com, told the Washington Examiner that “many users are confused about how incognito mode works and its design. The incognito mode is designed to prevent their web history from accumulating on their device for the duration of the incognito session.” Incognito mode cannot stop IP addresses, network logging, or the browser itself from saving information.
While the lawsuit in question may not grasp how incognito mode works, Walsh thinks the lawsuit is reasonable, saying, “It does seem fair for users to presume that they will not be tracked or profiled when they use a mode that claims to provide privacy.” A study from Microsoft, Carnegie Mellon University, and the University of Pennsylvania investigated whether incognito mode kept users’ information after visiting pornographic websites. The researchers found that incognito mode did little to stop the tracking from cookies and IP addresses, which relied on Facebook and Google’s infrastructure to communicate.
As for the lawsuit’s potential future?
“We’re still too early in this case to make any definitive statements or how this lawsuit will impact tech writ large,” said Stan Sater, a technology and data privacy attorney at Founders Legal. Sater told the Washington Examiner that other legal teams have attempted to criminalize nonconsensual data collection through the Wiretap Act of 1968. All of the attempts have failed so far.
However, Sater noted that a 9th U.S. Circuit Court of Appeals ruling in April 2020 might offer the key to winning the lawsuit. The court found that Facebook tracking a user’s internet history constituted the definition of “interception” under the Wiretap Act. Under this definition, several lawsuits regarding session replay software were filed against Lululemon, Blizzard, and WebMD.
This lawsuit is occurring concurrently with several other investigations. The Department of Justice announced that it would pursue a bipartisan antitrust investigation into Google’s “anti-competitive market behavior.” The inquiry includes looking into the company’s data protection and collection practices.
