Judge Rules Google Must Face Incognito Mode Privacy Suit

(CN) — Google remains on the hook in a privacy dispute as a federal judge ruled a case involving the company tracking users despite the use of incognito mode while browsing can proceed. 

U.S. District Court Judge Lucy Koh denied a motion to dismiss from the Silicon Valley titan late Friday, ruling that plaintiffs who believed they were safeguarding their privacy by taking a specific step were correct in feeling misled by the company. 

“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,” Koh wrote in a 41-page decision.

The case hinges on users of Chrome, who say they are inappropriately being tracked by the company for targeted advertising purposes despite using the private browsing feature or the incognito mode offered by the browser. 

Furthermore, the plaintiffs said they followed a specific process for protecting their privacy, namely not turning on the sync option, but Google was tracking their web surfing despite assurances to the contrary.  

Google argued during a contentious hearing in mid-February that the plaintiffs consented to have their data collected when they agreed to the terms of service.

“Each one of these people signed something saying the data they are now complaining about being collected is being collected,” Andrew Schapiro, an attorney for Google, said during last month’s hearing.  

But Koh dismissed this argument in her ruling. 

“First, Google cannot demonstrate that plaintiffs expressly consented because Google did not notify users that it would be engaging in the alleged data collection while Plaintiffs were in private browsing mode,” the judge wrote. “Google’s privacy policy does not disclose Google’s alleged data collection while Plaintiffs were in private browsing mode.”

Google further said it couldn’t be held liable under the Wiretap Act, because the law carves out exceptions for users who consent to have their data intercepted. 

But plaintiffs say they never consented. 

“Google told users it would protect their privacy as long as they don’t do certain things and they break that promise every day,” said Jay Barnes, attorney for the plaintiffs, in February. “They are promising consumers their browser is a safe place to go, while at the same time, the advertising division is hacking their way around privacy provisions in the Chrome contract.”

Koh agreed with the plaintiffs’ position. 

“Google does not demonstrate that websites consented to, or even knew about, the interception of their communications with users who were in private browsing mode,” Koh wrote. 

The company further attempted to argue that the statute of limitations for the claims had expired but the judge again disagreed. 

“Because Google’s alleged interceptions took place just months or days before plaintiffs filed their complaint, plaintiffs claims are not barred by the statutes of limitations,” Koh wrote. 

The judge said Google users have a reasonable expectation of privacy when they are in private browsing mode, or in incognito, and therefore were entitled to seek invasion of privacy claims when it turned out the company was still tracking their website browsing history. 

Specifically, Koh pointed to how Google advertised its incognito mode feature on its Chrome browser. 

“Now you can browse privately, and other people who use this device won’t see your activity,” the company stated while explaining the feature to potential customers. 

Barring an appeal by Google, the two parties will proceed to the discovery phase of the trial. The parties may also opt to pursue a settlement, a frequent route after plaintiffs clear the motion to dismiss phase of the trial. 

Many companies prefer to settle rather than subject themselves to the intrusive discovery process and the costly prospects of a protracted trial. 

Follow @@MatthewCRenda

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