Google to Settle $5B ‘Incognito Mode’ Privacy Issue Lawsuit

Google reached a preliminary settlement in a class action lawsuit that alleged the tech giant had misled consumers about their privacy protections when using the private browsing Incognito mode of its Chrome web browser. The settlement came on the heels of a court ruling clearing the case for trial.

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Google is in the process of wrapping up a “final and definitive settlement” with the plaintiffs after battling the case in a federal court for nearly four years, according to a joint filing submitted to Northern District of California Judge Yvonne Gonzalez Rogers.

The agreement stems from mediation that resulted in a binding term sheet, and both sides are expected to present the final settlement to Rogers within 60 days.

The settlement followed a federal court ruling last week that denied Google’s request to exclude substantial evidence, encompassing arguments related to classwide damages, unjust enrichment, testimony from a plaintiffs’ expert outlining the methodology standards for statutory damages and “purported harm to plaintiffs’ peace of mind.”

The ruling also dismissed a Google request to exclude evidence related to other litigations and regulations “not at issue in this litigation.” In August, Rogers denied Google’s request for a summary judgment.

The class action filed in 2020 alleges “at least” $5 billion in damages for Google unlawfully violated the privacy of millions by using cookies, analytics and tools in apps to track internet browsing activity even when users activated the Incognito mode in its widely used Chrome web browser.

Referring to the Incognito mode screen, Chrome’s privacy notice and Search & Browse Privately Help page, which asserted that Incognito mode minimizes stored information and allows users to manage whether their activities have been shared, Gonzalez Rogers in August stated that “a triable issue exists as to whether these writings created an enforceable promise that Google would not collect users’ data while they browsed privately.”

Google did not immediately respond to Information Security Media Group’s request for comment, but in an August statement to the Verge, following the ruling for summary judgement, it stated: “We strongly dispute these claims and we will defend ourselves vigorously against them. Incognito mode in Chrome gives you the choice to browse the internet without your activity being saved to your browser or device. As we clearly state each time you open a new incognito tab, websites might be able to collect information about your browsing activity during your session.”

The complaint also alleges that Google tracked and collected browsing history and other web activity data of its users “no matter what safeguards consumers undertake to protect their data privacy.”

The complaint called the tracking “surreptitious,” as even when users activated a web browser with “private browsing mode” as recommended by Google, the company still tracked browsing data and other identifying information. The plaintiffs alleged that Google’s use of Google Analytics, Google Ad Manager and various other application and website plug-ins made Incognito mode ineffective.