Written By: Pierce Stanley
Last month, U.S. District Court Judge Lucy Koh rejected Google’s bid to dismiss a class action lawsuit alleging Google surreptitiously tracks users of its popular Chrome browser while they browse in “incognito” mode. The decision is a small victory for privacy activists and a setback for Google, because it effectively dispenses with the tech giant’s argument that users consented to its data collection because users were aware from the browsers’ “new tab” pages.
The decision keeps alive a lawsuit, Brown v. Google, brought in June of 2020, when three browser users filed a complaint alleging Google operates a “pervasive data tracking business,” asserting that Google’s tracking persists even when users take affirmative steps to protect private information, such as using “incognito” mode in Chrome. The ruling comes as Google, Apple, and other companies continue to face heightened scrutiny from lawmakers over their data gathering policies.
At the time, Reuters reported the lawsuit sought at least $5 billion in damages—alleging a putative class in the millions—and accusing Google of violating several federal wiretapping statutes and the California Invasion of Privacy Act (“CIPA”). The lead plaintiffs ask that the class receive at least $5,000 in civil damages for multiple CIPA violations.
In her order, Judge Koh said Google has not demonstrated that users agreed to being tracked while in private browsing mode, particularly since Google’s privacy policies never mention private browsing or explain that Google collects some browser analytics such as IP addresses and screen dimensions, and operates some third-party cookies required for websites’ functionality.
According to Search Engine Journal, “The consumers who filed the case are taking issue with Google collecting data using other services while in ‘incognito’ mode.” For example, when a user visits a website in “incognito” mode, their data can still be collected by Google Analytics, which relies heavily on the use of third-party tracking cookies.
The class leaders say they were under the impression “incognito” mode offered all-encompassing privacy protection from data trackers across the internet. However, “incognito” mode does not preclude websites that use Google Analytics for routine analytics from continuing to track users’ behavior. Class members therefore assert they were misled by Google’s failure to disclose tracking of its users while in incognito mode. Since most websites today deploy Google Analytics in some form, the potential harm of data collected about unknowing users through Google’s incognito mode is vast.
Google argues that “incognito” browsing does not save users’ histories or any cookies after the end of their “incognito” session. Indeed, Google’s lawyers famously wrote, “‘incognito’ does not mean ‘invisible.’” The search giant contends most “incognito” users are aware of this distinction and know that their histories and cookies are cleared by default when a user closes their “incognito” browser, but websites and services most users interact with on the internet may still be able to track them. Google seemingly anticipated this public relations risk and recently declared its intention to move away from relying on third-party cookies, even though such a move may negatively affect the company’s advertising business.
It is unclear what the future of this lawsuit will bring. Successful class actions often lead to payouts of only a fraction of actual damage to consumers. Regardless of where this lawsuit goes, one thing is clear: it puts Google’s practices under the microscope. At the very least, the public is now more aware of how Google’s “incognito” mode works. The suit forces Google (and others) to stop burying important information in terms of service, and it places users on notice of what data companies collect. That’s a good thing—for privacy’s sake.
 Dorothy Atkins, Koh Won’t Toss Google Privacy Suit Over ‘Incognito Mode’, Law360 (Mar. 15, 2021, 7:24 PM), https://www.law360.com/articles/1364818 [https://perma.cc/MF47-XVHV].
 Ron Amadeo, Judge Rules $5 billion Google Chrome Incognito Mode Lawsuit Can Go Forward, Ars Technica (Mar. 15, 2021), https://arstechnica.com/gadgets/2021/03/judge-rules-5-billion-google-chrome-incognito-mode-lawsuit-can-go-forward/ [https://perma.cc/ANU8-J3L6].
Complaint, Brown, et al. v. Google LLC, et al, (N.D. Cal. (2020) (No. 20-3664).
 Kim Lyons, Judge rules Google Has to Face Lawsuit that Claims it Tracks Users Even in Incognito Mode, The Verge (Mar. 13, 2021, 3:40 PM), https://www.theverge.com/2021/3/13/22329240/judge-rules-google-5-billion-lawsuit-tracking-chrome-incognito-privacy [https://perma.cc/GAP8-VPKA].
 Malathi Nayak & Joel Rosenblatt, Google Must Face Suit Over Snooping on ‘Incognito’ Browsing, Bloomberg News (Mar. 13, 2021 1:36 AM), https://www.bloomberg.com/news/articles/2021-03-13/google-must-face-suit-over-snooping-on-incognito-browsing [https://perma.cc/3MR3-TVP2].
 Jonathan Stempel, Google faces $5 billion Lawsuit in U.S. For Tracking ‘Private’ Internet Use, Reuters (Jun. 2, 2020 6:11 PM), https://www.reuters.com/article/us-alphabet-google-privacy-lawsuit/google-is-sued-in-u-s-for-tracking-users-private-internet-browsing-idUSKBN23933H [https://perma.cc/RR5F-T6C5].
 Atkins, supra note 1.
 Jon Fingas, Google Will Face Lawsuit over Incognito Mode Tracking (Updated), Engadget (Mar. 13, 2021), https://www.engadget.com/google-must-face-incognito-mode-lawsuit-212859134.html [https://perma.cc/JWH8-93S9].
 Matt Southern, Google to Face $5B Lawsuit over Tracking Users in Incognito Mode, Search Engine J. (Mar. 15, 2021), https://www.searchenginejournal.com/google-to-face-5b-lawsuit-over-tracking-users-in-incognito-mode/399113/ [https://perma.cc/6UJP-K285].
 Atkins, supra note 1.
 Southern, supra note 8.
 Atkins, supra note 1.
 Kevin Shalvey, A Lawsuit That Accused Google of Collecting the Data of People Who Were Using Incognito Mode Can Continue, Said a Federal Judge, Bus. Insider (Mar. 14, 2021, 6:45 A.M.), https://www.businessinsider.com/google-lawsuit-incognito-mode-user-data-privacy-can-continue-judge [https://perma.cc/57QN-EZ5H].
 Ryan Whitwam, Google Fails to Win Dismissal of Incognito Mode Lawsuit, ExtremeTech (Mar. 15, 2021, 2:32 P.M.), https://www.extremetech.com/internet/320847-google-fails-to-win-dismissal-of-incognito-mode-lawsuit [https://perma.cc/NX9J-UXNQ].
 Lyons, supra note 3.
 Fingas, supra note 7.