What does the word "incognito" mean to you? Merriam-Webster says it means "with one's identity concealed." The Cambridge Dictionary defines it as "avoiding being recognized, by changing your name or appearance." The definitions that pop up when you Google the word are "having one's true identity concealed" if used as an adjective, "in a way that conceals one's true identity" if used as an adverb, and "an assumed or false identity" if used as a noun.
It seems like just about everyone agrees that going incognito means concealing one's identity to act or exist in a state of anonymity. It conjures images of spies shuffling through crowds, of heavy trench coats and low-brimmed fedoras, of false identities, wigs, and facial prosthetics. It does not conjure images of a shadowy Big Brother watching your every move, taking notes, and using the information it collects against you.
Evidently, Google disagrees.
Incognito Mode
Google agreed to settle a $5 billion privacy lawsuit at the end of December 2023, though the actual dollar amount is anyone's guess until the final settlement is agreed on in February 2024. The suit, Brown et al v. Google LLC et al, was filed as a class-action back in 2020 by plaintiffs claiming that Google's Chrome browser misled users into thinking its privacy-focused "incognito mode" was actually private, when Google actually continued tracking and recording their activities even after users activated the mode.
Opening incognito mode on Chrome brings up a screen that describes what the mode does, including:
"Chrome won't save the following information:
- Your browsing history
- Cookies and site data
- Information entered in forms"
According to the original lawsuit, Google: "represents that 'across our services, you can adjust our privacy settings to control what we collect and how your information is used.' Nothing could be further from the truth."
The lawsuit argues Google may have made some overt promises, implied others, and buried their caveats deep in the fine print. However, none of Google's information harvesting infrastructure gets turned off or even put on standby when a user activates incognito mode. Their usual data-gathering suspects – Google Analytics, Google Ad Manager, various plugins, cookies, trackers, and other applications – continue to monitor a user whether in incognito mode or not.
Whenever a user navigates to a website that uses some combination of Google's tracking services, the company starts collecting data on them as soon as they arrive. Google collects their IP address (which can be used as a fairly accurate proxy for their location), what the user is looking at, what the user looked at recently, details about what the user is using to view the page itself (which can be extrapolated to approximate factors like brand preference, tech-savvy, and income level), and more – all without the user needing to click on whichever applet, advertisement, application, or plugin that's collecting the data.
What's the Big Deal?
The first and most obvious point in the plaintiffs' favor is that collecting personal data without receiving the permission of or even notifying users is seen as something of a no-no in most legal circles.
The lawsuit alleges that Google's deception didn't end at pretending users could browse privately. One of the promises Google made to its users was that they could have full control over their data and how Google collects it. Their privacy policy urges users who are concerned about their data to go to their "My Activity" page, where they promise those users the ability to adjust their privacy settings and the way Google harvests and uses their data. They make it sound like a simple matter of adjusting a few sliders and calling it a day.
You can probably guess where this is going.
Not only does the My Activity page repeatedly urge users to protect their privacy using incognito mode, but it also buries the so-called adjustable privacy settings under layer after layer of obfuscating text that – you guessed it – tells users to use incognito mode. In fact, as of the initial filing of the lawsuit, looking for the so-called privacy settings does nothing but force you through a Kafkaesque loop of instructions, platitudes, and recursive links seemingly designed to frustrate rather than accommodate.
What Now?
Google has agreed to settle with the plaintiffs. If they'd wanted to grind the plaintiffs down to penniless nubs, they certainly have the resources for it. However, as with many other companies facing a lawsuit that could affect their public image, Google likely settled because a protracted court battle wasn't in their interest.
An optimist might hope that this settlement would be what gets the ball rolling back toward an internet that doesn't track your every move. But it seems like for now, advertisers need to know what we ate this morning, our favorite brand of toilet paper, which mousetrap we prefer, and every single other detail of our personal lives to sell us toothpaste or insurance.
Related Resources:
- Okay Google, Spell “Antitrust" (FindLaw's Courtside blog)
- Can I Sue Google? (FindLaw's Learn About the Law)
- Protecting Customer Data (FindLaw's Learn About the Law)
