Google Faces $5 Billion Lawsuit Over Privacy Mode Tracking Claims

Google has been accused of tracking users in Chrome, even when the Incognito privacy mode was enabled, with a new lawsuit seeking $5 billion in damages. Filed in the federal court in San Jose, California this week, the proposed class action suit alleges that Google contravenes the Federal Wiretap Act.

That's the legislation which protects people from interception of their communications. Originally, that meant voice conversations over wired telephone lines, but subsequent updates added provisions for interception over other mediums like the internet.

Google, the lawsuit argues, offers an Incognito mode which claims to be more private, giving users the impression that their surfing habits are not being recorded. In reality, the complaint suggests, various Google tools – including analytics baked into websites, Google Ad Manager, and more – still track users and build up profiles of their behaviors. In short, it concludes, Google must be stopped as it "cannot continue to engage in the covert and unauthorized data collection from virtually every American with a computer or phone."

Unsurprisingly, Google sees the situation differently and says it will defend itself against the lawsuit. A spokesperson pointed to the limitations of Incognito mode, arguing that they're clearly signposted whenever a new private tab is opened.

"As we clearly state each time you open a new incognito tab, websites might be able to collect information about your browsing activity," Google spokesperson Jose Castaneda told Reuters.

"You've gone incognito," the dialog in the new private tab explains. "Now you can browse privately, and other people who use this device won't see your activity. However, downloads and bookmarks will be saved."

While Chrome won't save browsing data, cookies and site data, or any information entered in forms, it warns, however, others may still have visibility as to what you're looking at. That could include websites visited, an employer or school, or the internet service provider themselves. That's because, while Chrome may not be logging activity, that activity is not necessarily being encrypted.

Adding to the complexity is Google's multiple roles in any typical browsing session. While Chrome may not be gathering user data in Incognito mode, the search giant nonetheless powers many of the analytics systems websites use to track visitors. Its adverts also act as data logging systems – even if users don't click on them – and typically there's little to no outward indication of what is being logged and saved.

The lawsuit, filed on Tuesday on behalf of plaintiffs Chasom Brown, Maria Nguyen, and William Byatt, proposes a class action suit that could include "millions" of Google's users. It's suggesting at least $5,000 in damages per user.