On Monday 7 August 2023, California judge Yvonne Gonzalez-Rogers rejected Google’s request for summary judgment in a lawsuit brought by users who claim that the company unlawfully intruded on the privacy of numerous individuals using ” Incognito Mode”

Those who are suing Google argue that this breach occurred due to Google’s cookies, analytics, and app tools continuing to monitor internet browsing activities even after users activated features like Chrome’s Incognito mode or Safari’s private browsing.

The users had expected a certain degree of privacy. Nevertheless, as we previously highlighted in 2018, the reality is that “private browsing mode” doesn’t truly guarantee privacy.

Judge Yvonne Gonzalez-Rogers highlighted statements within Chrome’s privacy notice, Privacy Policy, Incognito Splash Screen, and Search & Browse Privately Help page. These statements discussed how incognito mode restricts information storage or provides options for users to manage the data they share.

Judge Gonzalez-Rogers stated, “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.”

The judge also highlighted another point that counters Google’s arguments. The plaintiffs provided evidence indicating that Google combines both regular and private browsing data in the same logs.

Furthermore, even if individual data points seem anonymous on their own, when aggregated, Google can use them to effectively and uniquely identify a user.

In response to Google’s claim that the plaintiffs didn’t experience any economic harm, the judge stated that the plaintiffs demonstrated a demand for their browsing data in the market.

The alleged covert collection of data by Google hindered the plaintiffs’ ability to participate in this market. Moreover, due to the nature of Google’s data collection practices, monetary damages alone are deemed insufficient for rectification.

Gonzalez-Rogers deemed injunctive relief necessary to address the ongoing collection of users’ private browsing data by Google.

The lawsuit, filed in 2020, sought damages of “at least” $5 billion.

The recent ruling, reported by Mike Swift for MLex, wasn’t entirely unexpected, given prior indications from the judge. Nonetheless, it carries significant implications, propelling the case closer to a potential settlement or trial.