A hearing today will decide whether Google will face billions in damages due to the lack of privacy its so-called Incognito Mode gives browsers.
A potential class action, in which statutory damages of between US$100-$1,000 per violation may be paid out to tens of millions of Incognito users, hinges on the decision of US District Judge Yvonne Gonzalez Rogers.
The suit argues that Google is secretly storing browsing data after misleading users into openly browsing while believing their personal information and browser histories were being kept private.
Google argues it has consent to track user data, and the lack of privacy in Incognito is “common knowledge”. Google has faced a number of lawsuits regarding this feature over the years.
In a hearing last year, U.S. District Judge Lucy Koh said she was “disturbed” by Google’s data collection, and reacted badly when a lawyer for Google argued that even the court used Incognito mode.
Koh wanted clarification “about what exactly Google does,” adding, “I want a declaration from Google on what information they’re collecting on users to the court’s website, and what that’s used for.”
This time alone, plaintiffs are using Google emails, presentations and employee testimony from over the year to show that Google is well aware of the duplicity, and will even joke about it.
“Make Incognito Mode truly private,” Google’s marketing chief Lorraine Twohill wrote in an email to CEO Sundar Pindar last year, when asked for ideas on International Data Privacy Day.
“We are limited in how strongly we can market Incognito because it’s not truly private, thus requiring really fuzzy, hedging language that is almost more damaging.”
Another engineer wrote in 2018: “We need to stop calling it Incognito and stop using a Spy Guy icon,” to which a colleague countered with a link to a Wiki page showing ‘Guy Incognito’, a badly disguised version of Homer Simpson.
“Regardless of the name, the Incognito icon should have always been Guy Incognito,” they wrote.
“Which also accurately conveys the level of privacy it provides.”
An internal proposal suggested changing messaging to read: “You are NOT protected from Google,” instead of “You are protected from other people who use this device.”
A 2020 presentation warned “unless it is clearly disclosed that their activity may be trackable, receiving targeted ads or suggestions based on private mode may erode trust.”
Google, of course, argues these discussions, presentations, and pitches were all in the spirit of improvement.
“Privacy controls have long been built into our services and we encourage our teams to constantly discuss or consider ideas to improve them,” spokesman Jose Castaneda said.
“Incognito mode offers users a private browsing experience, and we’ve been clear about how it works and what it does, whereas the plaintiffs in this case have purposely mischaracterised our statements.”
