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Google fails to end $5 billion lawsuit over 'Incognito mode' tracking

The class action lawsuit concerning alleged illegal internet tracking and privacy concerns now inches closer to trial.
Google fails to end $5 billion lawsuit over 'Incognito mode' tracking
Posted at 12:00 PM, Aug 10, 2023

A U.S. judge has thwarted Google's attempt to dismiss a $5 billion lawsuit alleging the tech giant illegally tracked users' online activity, even after they had switched to the "Incognito" private browsing mode in Chrome.

District Judge Yvonne Gonzalez Rogers denied Google's request Monday for a summary judgment, which would have prevented the case from going to trial. In the 36-page decision, Rogers pointed to Google's Privacy Policy, among other things, saying she could not find that users consented to letting Google collect information about their online activity because the company never explicitly told them it would.

"Taken as a whole, a triable issue exists as to whether these writings created an enforceable promise that Google would not collect users' data while they browsed privately," Rogers said in the ruling.

SEE MORE: More states join federal lawsuit against Google's ad business

She also responded to Google's argument that the plaintiffs did not suffer economic damage, pointing to a pilot program that paid users $3 per day for their browsing histories. 

"Plaintiffs have shown that there is a market for their browsing data," Rogers stated. "And Google’s alleged surreptitious collection of the data inhibited plaintiffs' ability to participate in that market."

The class action lawsuit was filed in 2020, alleging Google still harvests data from users in Incognito mode through things like Google Analytics, Google Ad Manager, cookies and apps. The plaintiffs argue that the Mountain View, California, company therefore deceived users by making them believe they had control over their data  while in private browsing mode.

The lawsuit covers users since June 1, 2016 and is seeking at least $5,000 in damages per user for violating federal wiretapping laws and California privacy laws.


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