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US District Judge Lucy Koh has ruled that a class-action lawsuit against Google’s Incognito tracking policies can go forward, Bloomberg reports. The lawsuit contends that Chrome’s private browsing “Incognito” mode should also stop Google’s server-side tracking and that Google’s failure to cease such tracking violates federal wiretap laws. The lawsuit seeks at least $5 billion, or $5,000 per violation for “likely” millions of users.
Google attempted to get the lawsuit thrown out on the basis of Chrome’s Incognito explainer, a message that shows every time you start up Incognito mode and explains that “your activity might still be visible to websites you visit.”
That was not enough for the judge, however. “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,” Judge Koh wrote.
Here’s the crux of the lawsuit:
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. When users undertake either—or both—of the aforementioned steps, Google 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.
“We strongly dispute these claims and we will defend ourselves vigorously against them,” a Google spokesperson told Bloomberg after the ruling. “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.”
Incognito mode doesn’t use your existing cookie store and, at the end of the session, dumps any cookies, history, and autofill data that were generated—that’s it. It doesn’t change the way websites work. If the message on the Incognito “new tab” page isn’t enough for you, it also links to a “learn more” page that graphically spells out the details in several paragraphs. Whether that’s enough for Google to dodge this lawsuit is something the company will have to hash out in court.