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Judge says lawsuit against Google’s not-so-private “incognito mode” can proceed

It's not private after all.

A US federal judge has decided that an attempt to launch a class action lawsuit, which Google tried to stop in its tracks by seeking a motion to dismiss, can proceed.

The filing concerns the “incognito” (or “private”) mode in Google’s Chrome that five plaintiffs say is misleading users into expecting that their personal data would be protected while using the browser in this way.

As users launch Chrome’s “incognito” mode, they open a new window when Google informs them they’d “gone incognito (…) now you can browse privately.”

This might lead many to believe they are free from Google’s own invasive and omnipresent tracking and data collection, but in reality it means “other people who use the device won’t see your activity” – as browsing history, cookies, etc., are not saved locally by the browser. But Google does not say that it will continue to collect data for targeted ads (which it does), and for that reason, the argument against the tech giant is that users are prevented from engaging in informed and express consent.

This potentially translates into too much ambiguity, starting with “incognito’s” landing page, including the feature’s name, which may confuse the average user into believing their privacy and data are protected across the web, instead of only on their own devices.

San Jose Federal District Court Judge Lucy Koh did not seem to disagree when she threw out Google’s motion to dismiss, stating, “The court concludes that Google did not notify users that Google engages in the alleged data collection while the user is in private browsing mode.”

We’re providing a copy of the decision for you here.

More specifically, Judge Koh wrote, “Google’s privacy policy does not disclose Google’s alleged data collection while plaintiffs were in private browsing mode.”

The filing which Google failed to get rid of before it potentially turns into a class action lawsuit, also alleges that Google unlawfully intercepted data under the US Wiretap Act while users were in “incognito” – another point where the judge rejected Google’s claim that users had in fact consented to its terms of service, meaning that the behemoth is not legally liable in this scenario.

Another of Google’s motion to dismiss points that went out the window was the claim that the statute of limitations rule applies in this case.

Next in this case is discovery, when Google will have to do one of things it likes to do the least: provide documents that show exactly what personal data is collected from users, this time, those browsing the web “incognito.”

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