Google will face lawsuit over Incognito mode tracking (updated)

Google allegedly didn't do enough to explain what the mode involved.

Mateusz Slodkowski/SOPA Images/LightRocket via Getty Images

Google now has no choice but to deal with a lawsuit over Incognito mode tracking. As Bloomberg reports, Judge Lucy Koh has denied Google's request to dismiss the class action case. Koh determined that Google "did not notify" users it was still collecting data while Incognito's privacy mode was active, giving the plaintiffs enough ground to move forward with their case.

The chief participants in the lawsuit had accused Google of misleading users, telling them their info was private even as it monitored their habits. The search giant had argued that users agreed to its privacy policy and thus knew Google was collecting data. It reportedly warned that Incognito "does not mean 'invisible'" and that sites could still see activity.

We've asked Google for comment.

It's unclear whether or not the lawsuit will succeed, let alone that there will be meaningful changes or compensation. Successful class actions frequently lead to payouts that represent a fraction of the damage to customers. Incognito mode's limitations are well-known among enthusiasts — it's really there to keep sites out of your local search history and cookies, not to block all potentially identifying traffic.

It's not clear the general public is aware of Incognito's true behavior, though. The lawsuit could force Google to more explicitly tell users what it does and doesn't collect. The complaint also serves as criticism of companies that bury important information in their terms of service. Few people read those agreements from start to finish, and that can cause problems when privacy is at stake.

Update 3/14 11AM ET: Google spokesperson José Castañeda told Engadget the company "strongly dispute[s]" the claims, and that Incognito warns you sites might still track you. The full statement is available below.

We strongly dispute these claims and we will defend ourselves vigorously against them. Incognito mode in Chrome gives you the choice to browse the internet without your activity being saved to your browser or device. As we clearly state each time you open a new incognito tab, websites might be able to collect information about your browsing activity during your session.