Google Sued for Incognito Mode Abuse

Incognito: having one’s identity concealed, as under an assumed name, especially to avoid notice or formal attentions.

With this definition in mind, I assume, therefore, that when I choose to browse in Incognito Mode on Google’s Chrome Browser, I will have my identity concealed. I don’t think that’s expecting too much. Google, itself, promises that “Chrome won’t save your browsing history, cookies and site data, or information entered in forms.” That’s nice, but there’s more to being incognito than this, and that’s where the problem begins. That’s why a class action suit was filed against Google.

I think that both sides in this debate are wrong. Google should not have named this mode as it did. In truth, they should have called it something like Home Privacy Mode. So, yes, the name was deceptive. Their marketing department should have known better. That said, users of free sites should always be wary. They could have always read the fine print; and the fine print here says, “your activity isn’t hidden from websites you visit, your employer or school, or your internet service provider.” Then what’s the point of using it? My employer can see everything I’m doing, my school can see everything I’m doing, and my internet service provider can see what I’m doing and can give my information to law enforcement if that time ever comes. I’m certainly not incognito.

But let’s face it. All the big tech companies that give out free services demand payment in the form of privacy invasion. It would be naïve in this day and age to think otherwise. There is no privacy if you use the internet. If you don’t believe this, read my post on Yahoo privacy terms. I might have been the only person to read through this massive document and I concluded that they can do anything they want with your data. The truth is that what these companies do would be considered as hacking if it weren’t for the fact that you agreed to it.

But can’t you just set your privacy settings to make sure they get none of your personal data? Good luck with that. I’ve gone through this time consuming process a number of times. It’s good for about a day. Then, for a multitude of reasons, you will find that the tracking of your internet behavior is back in place again. One way or another, those who want your data will get it.

The class action lawsuit that was filed in June 2020 stated that “Google’s practices infringe upon users’ privacy; intentionally deceive consumers; give Google and its employees power to learn intimate details about individuals’ lives, interests, and internet usage; and make Google ‘one stop shopping’ for any government, private, or criminal actor who wants to undermine individuals’ privacy, security, or freedom.” And this is not the only invasion of privacy lawsuit Google is facing. In fact, they recently had to pay $170 million for violating the Children’s Online Privacy Protection Act when they illegally collected information from children using YouTube. Sure, this is just pocket change for Google, but it at least should have served as a warning. Sadly, it did not.

Here is what Google claims about Incognito Mode on its website.

This might be true, in so far as it goes. However, the key word here is ‘Chrome’. While Chrome itself may not be collecting user data, other Google services are. For example, when a user visits a website served by Google Analytics, data will be collected and shared. Google also openly admits that, “search engines may show search suggestions based on your location or activity in your current Incognito browsing session. When you search on Google, Google will always estimate the general area that you’re searching from.” So, Google is still saving some of your data, even if you are in Incognito Mode. The truth is that Incognito Mode is only really good at protecting you from the prying eyes of others who may be using your device, like the computer you use at home. Users of a shared computer will not be able to see the sites you were visiting. That’s about it.

True, Google may have been deceptive to some degree, but they do tell the users of Incognito Mode what to expect every time the user enters that mode. It would seem, at least on the face of it, that Google has a strong legal case. The lawsuit is asking Google, and its parent company, Alphabet, for $5 billion. Google immediately asked for the suit to be dropped. Clearly, they believed they had covered their bases. So, it comes as a bit of a surprise that the judge in the case, U.S. District Judge Lucy Koh of San Jose, California, stated in her opinion that, “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.” A Google spokesman has, not unexpectedly, responded that “we strongly dispute these claims and we will defend ourselves vigorously against them.”

I can’t see how this case can survive closer legal scrutiny. However, there is a pervasive and increasingly anti-big tech sentiment in the air. In fact, the refusal of the Supreme Court to overturn a lower court decision on Facebook violating the Wiretap Act may not bode well for Google.

In this case, the 9th U.S. Circuit Court of Appeals of San Francisco concluded that “Facebook’s user profiles would allegedly reveal an individual’s likes, dislikes, interests and habits over a significant amount of time, without affording users a meaningful opportunity to control or prevent the unauthorized exploration of their private lives.” Facebook appealed this decision to the Supreme Court, but the court’s refusal to overturn the lower court’s decision indicated that the class action suit can go ahead.

If, then, a tech company violates the Wiretap Act by, in effect, ‘listening in on’ private communications between a user and the websites they visit, almost all tech companies offering free services are open to class action lawsuits. A decision against either Google or Facebook would, in effect, nullify the use of end user licensing agreements (EULA) that these companies use to protect themselves, and that would change the whole internet landscape.  

Whether such changes would be good for the average user is open to debate. It’s possible that these companies could make users pay for true privacy or pay them for using their data. In fact, it might just be easier for them to give up the free service model altogether since expensive lawsuits may make such services unprofitable. All I’d like to see is that they make their user agreements more transparent so that everyone knows up front what information they are handing over to these firms.

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