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Google will have to face $5B suit alleging Chrome tracks user in incognito modes

Updated Mar 15th, 2021 12:41PM EDT
Google Chrome
Image: Teerasan/Adobe

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Internet browsers offer a feature called “incognito mode,” which should allow users to surf the web privately. Google Chrome has its own incognito mode, but a lawsuit alleges that Google is tracking user browsing habits even when it shouldn’t do it. The proposed class-action suit was filed back in June 2020. Google has defended against those claims, seeking to have the lawsuit dismissed. But the judge presiding over the case concluded that Google would have to face the $5 billion suit, denying a dismissal.

The lawsuit alleges that Google can track users despite wording that indicates Chrome’s incognito mode can limit user tracking — from the lawsuit against Google:

Google promises consumers that they can ‘browse the web privately’ and stay in ‘control of what information [users] share with Google.’ To prevent information from being shared with Google, Google recommends that its consumers need only launch a browser such as Google Chrome, Safari, Microsoft Edge, or Firefox in ‘private browsing mode.’ Both statements are untrue.

The company “continues to track, collect, and identify their browsing data in real-time, in contravention of federal and state laws on wiretapping and in violation of consumers’ rights to privacy,” the suit alleges.

The lawsuit said back in June that it will be seeking at least $5,000 in damages per user for violations of the California privacy laws and that millions of people might join the class action suit.

Google said at the time that it planned a vigorous defense. Google also noted that its incognito mode informs users that other parties might still track users online even the privacy-enhancing mode is enabled.

The lawsuit alleges that Google can still collect user data in incognito mode via Google Analytics, Google Ad Manager, website plug-ins, mobile apps, and other applications.

US District Judge Lucy Koh, who famously presided over the Apple-Samsung patent litigations a few years ago, ruled against Google on Friday.

“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,” US District Judge Lucy Koh wrote in the ruling, per CNET.

Google did take steps to prevent user-tracking in incognito mode, closing a loophole that would allow sites to track users.

Google also recently said that Chrome would no longer support third-parties to track users via cookies. Google said it would not replace the feature with an alternative to allow other sites to continue tracking users online.

“We continue to get questions about whether Google will join others in the ad tech industry who plan to replace third-party cookies with alternative user-level identifiers,” Google explained a few days ago. “Today, we’re making explicit that once third-party cookies are phased out, we will not build alternate identifiers to track individuals as they browse across the web, nor will we use them in our products.” This policy might impact user tracking in incognito mode if third-parties have such abilities in place. But it won’t make Google’s $5 billion problem go away.

Google will still track and collect user data via its own apps and services when used in regular browsing mode.

Chris Smith Senior Writer

Chris Smith has been covering consumer electronics ever since the iPhone revolutionized the industry in 2008. When he’s not writing about the most recent tech news for BGR, he brings his entertainment expertise to Marvel’s Cinematic Universe and other blockbuster franchises.

Outside of work, you’ll catch him streaming almost every new movie and TV show release as soon as it's available.

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