Is Private Browsing Really Private? Google Faces Class Action Lawsuit

With the option for utilizing “private browsing” for searching the Internet, do you know just how private such browsing really is? Google will have to answer, as it recently came under fire after a proposed class action lawsuit was filed against it in the U.S. District Court for the Northern District of California.  

Proposed Class Action Questioning Privacy of Private Browsing 

With alleged damages adding up to $5,000 per individual, at its minimum, the class action alleges that millions of Google users have had their privacy rights violated by a myriad of Google applications.  At the heart of the lawsuit, however, is the allegation that the “incognito” or “private browsing” mode of Google’s web browser, Chrome, is not private at all.  Instead, the complaint alleges that the “incognito” mode of Chrome actually tracks users even when it purports not to.  When asked about the allegations, Google released a statement noting that users have always been aware that “each time you open a new incognito tab, websites might be able to collect information about your browsing activity....”   

The plaintiffs of the class action disagree.  In the complaint, the plaintiffs argue that Google has always recommended “private browsing” or “incognito” mode for users that do not want their information tracked or shared.  A popular option among Internet users, such “private browsing” modes are also available on competing browsers like Mozilla’s Firefox, Apple’s Safari, and Microsoft Edge.  

Lawsuit Focuses on Connotation of the Term “Private Browsing”

While Chrome’s “incognito” mode does indeed have a landing screen that states some information may still be accessible by the internet service provider, employer/school, or the website the user is visiting; many “private browsing” modes of the other aforementioned browsers do not contain such language.  And with users often swapping between different browsers across multiple devices, such language can be understandably lost in the mix. 

Despite Google’s disclaimer, however, the complaint still alleges that Google’s “incognito” mode has violated the Federal Wiretap Act, the California Invasion of Privacy Act, the California Constitution, and Instruction Upon Seclusion.  In other words, consumers have been unfairly misled by the use of the term “private browsing” when their browsing is, in fact, not private.  

Various Google Apps Scrutinized for Privacy Concerns

The proposed class action is not limited to Google’s Chrome only.  The lawsuit actually also extends to Google’s other applications and services as well.  For instance, the complaint also includes, for example, complaints lodged against Google Analytics, Google Ad Manager, Google Sign-In, and various related plug-ins.  With over 70% of online traffic using Google Analytics alone, Google is facing a penalty of approximately $5B in total based on an approximate $5,000 in damages for each affected user.  As such, it would behoove both clients and counsel to follow the development of this lawsuit as it could have major ramifications on consumer privacy nationwide.   

Key Takeaways from the Use of the Term “Private” in Consumer Apps

Google could be facing fines numbering in the billions if a proposed class action lawsuit filed in California is allowed to proceed.  The lawsuit alleges that Google’s services violate privacy laws because:

• users are misled by the “private browsing” label into thinking that their activity will not be monitored;

• the information tracked in “incognito” may still be bought, shared, and tracked with third parties; and

• such information may be linked to user accounts via the Google Sign-In button or through imported settings.

For more insights on data privacy, see our Intellectual Property Litigation Overview and Consumer Products Industry Legal Solutions pages.

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