Google Fails to Win Dismissal of Incognito Mode Lawsuit

Google has failed to win the dismissal of a class-action lawsuit over Incognito Mode in its Chrome browser. Judge Lucy Koh denied Google’s request, saying the company did not sufficiently warn users that Incognito Mode isn’t really incognito. The lawsuit claims Google still tracks users across the internet, even if they’re using Incognito Mode. Google’s defense is not that the plaintiffs are mistaken, but rather that it told everyone very clearly they could still be tracked.

Google added Incognito Mode to the Chrome browser just a few months after release in 2008 — it was one of the first browsers to add this feature, and others followed in its footsteps. Now, you can access similar private browsing modes on every major browser, but not everyone is happy with the offering. The plaintiffs in the case say Google is breaking wiretapping laws by continuing to track users who have enabled Incognito.

Incognito Mode works just like all those other private browsing modes. It’s basically guest mode. The browser doesn’t save any of your history or cookies after the end of an Incognito session, but the websites and services you come in contact with on the internet will still be able to track you. For example, if you log into Gmail in an Incognito window, Google still gets all the same data as if you were using a regular window.

Google explains this on the start page when you launch a new incognito window, but many people fail to understand how this mode works. Many people incorrectly believe that Incognito Mode hides your activity from Google and other online service providers. The class-action lawsuit would seem to imply that Google’s efforts to clarify things have been insufficient to the point it runs afoul of the law. This is in spite of what I would consider a very clear warning every time you open a new incog window. So why are people confused? Is it the branding? The UI? The little icon with the hat and sunglasses? I’m sure the lawyers for plaintiffs will have something to say about this when the case goes before a judge.

Even if the lawsuit succeeds, you should not expect to see a big payday. Lawyers claim that millions of people have been affected by Google’s incognito tracking. So, any cash settlement will be split up into tiny fragments, except for the lawyers who will get a large chunk of the money. Maybe you’ll get some Google freebies if you’re lucky.

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