Google settles a claim alleging it tracked users even when browsing in private mode

January 5, 2024 |

On 5 February 2024 Google was going to trial in a class action which alleged that it tracked users’ browsing activities when in private mode. The claim was for $5 billion dollars. Obtaining such an award was always unlikely. Even a substantial financial award would pale into the huge reputational damage associated with disclosing Google’s practices. Not surprisingly the case has settled, as reported by Forbes and the BBC.

Google fought this case hard, with multiple attempts to strike out the proceeding. The modus operandi is common to technology companies, fight and fight and fight until the hearing date nears and then try to settle.

The Forbes article provides:

Alphabet Inc.’s Google subsidiary has tentatively settled accusations of misappropriating user data, averting a potentially revealing court trial. The lawsuit originally sought $5 billion in damages, but terms of the settlement terms were not disclosed. The news was first reported by Reuters.

According to court documents, the search giant agreed to resolve claims that despite promises of privacy, it tracked the internet activity of users browsing in what they believed was an undercover mode. Consumers contended that they were shadowed by Google even while using the supposedly concealed ‘Incognito’ mode on Chrome, raising alarms over the sanctity of online privacy. The company tried to get the court to throw out the case multiple times, but failed.

The agreement, announced before a pending trial date on February 5, 2024, halts the progression of a class-action suit that sought damage payments of at least $5 billion. Terms of the settlement, brokered through a private mediation process, are not yet public, but will be revealed upon submission for court approval by the end of February 2024.

While the plaintiffs’ attorneys and Google refrained from commenting on the settlement, the crux of the legal challenge put Google’s transparency under scrutiny.

The case hinged on the assumption that Google’s analytics and ad-targeting mechanisms continued to siphon personal data regardless of user privacy settings, converting virtually anonymous browsers into valuable data points.

U.S. District Judge Yvonne Gonzalez Rogers’s ruling in August 2023 against Google’s bid to dismiss the case underscored the perplexity of consent and disclosure in digital privacy. Rogers highlighted potentially misleading assurances given by Google to its users regarding data collection in privacy mode.

The lawsuit, initially filed in 2020, represented users nationwide since June 2016 and called for punitive damages based on alleged infringements of federal wiretapping and California privacy laws.

With digital privacy issues at the forefront of consumer protection debates, the Brown et al v Google LLC et al case captures the growing discord between user expectations and the realities of online data management by industry leaders.

The BBC article provides:

Google has agreed to settle a US lawsuit claiming it invaded the privacy of users by tracking them even when they were browsing in “private mode”.

The class action sought at least $5bn (£3.9bn) from the world’s go-to search engine and parent company Alphabet.

Large technology firms have faced increased scrutiny of their practices in the US and beyond.

Lawyers representing Google and its users did not immediately respond to the BBC’s requests for comment.

US District Judge Yvonne Gonzalez Rogers put a scheduled trial for the case on hold in California on Thursday, after lawyers said they had reached a preliminary settlement.

Judge Rogers had rejected Google’s bid to have the case dismissed earlier this year, saying she could not agree that users consented to allowing Google to collect information on their browsing activity.

The terms of the settlement were not disclosed. However, lawyers are expected to present a formal settlement for the court’s approval by February 2024.

The class action, which was filed by law firm Boies Schiller Flexner in 2020, claimed that Google had tracked users’ activity even when they set the Google Chrome browser to “Incognito” mode and other browsers to “private mode”.

It said this had turned Google into an “unaccountable trove of information” on user preferences and “potentially embarrassing things”.

It added that Google could not “continue to engage in the covert and unauthorized data collection from virtually every American with a computer or phone”.

Google said it had been upfront about the data it collected when users viewed in private mode, even if many users assumed otherwise.

The search engine said the collection of search history, even in private viewing mode, helped site owners “better evaluate the performance of their content, products, marketing and more”.

Incognito mode within Google’s Chrome browser gives users the choice to search the internet without their activity being saved to the browser or device. But the websites visited can use tools such as Google Analytics to track usage.

Google faces other lawsuits challenging its search and digital advertising practices.

Earlier this month, the technology giant said it would pay $700m to settle a lawsuit brought by a group of US states that accused Google of quashing competition to its Play Store on Android devices.

This came days after it lost a US court battle to Fortnite maker Epic Games. The video game company sued Google in 2020 for unlawfully making its app store dominant over rivals.

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