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Using Google’s ‘Incognito’ Mode Fails To Prevent Tracking

Judge in Google Case Disturbed That Even ‘Incognito’ Users Are Tracked. Using Google’s ‘Incognito’ Mode Fails To Prevent Tracking

When Google users browse in “Incognito” mode, just how hidden is their activity?

The Alphabet Inc. unit says activating the stealth mode in Chrome, or “private browsing” in other browsers, means the company won’t “remember your activity.” But a judge with a history of taking Silicon Valley giants to task about their data collection raised doubts Thursday about whether Google is being as forthright as it needs to be about the personal information it’s collecting from users.

At a hearing Thursday in San Jose, California, U.S. District Judge Lucy Koh said she’s “disturbed” by Google’s data collection practices as described in a class-action lawsuit that says the company’s private browsing promises is a “ruse.” The suit seeks $5,000 in damages for each of the millions of people whose privacy has been compromised since June of 2016.

Weighing Google’s attempt to get the suit dismissed, Koh said she finds it “unusual” that the company would make the “extra effort” of data collection if it doesn’t use the information to build user profiles or targeted advertising.

Google has become a target antitrust complaints in the last year filed by state and federal officials — as well as businesses — accusing it of abusing its dominance in digital advertising and online search. Koh has a deeper history with the company as a vocal critic of its privacy policies. She forced Google in one notable case to disclose its scanning of emails to build profiles and target advertising.

In this case, Google is accused of relying on pieces of its code within websites that use its analytics and advertising services to scrape users’ supposedly private browsing history and send copies of it to Google’s servers.

Google makes it seem like private browsing mode gives users more control of their data, Amanda Bonn, a lawyer representing users, told Koh. In reality, “Google is saying there’s basically very little you can do to prevent us from collecting your data, and that’s what you should assume we’re doing,” Bonn said.

Company Disclosure

Google argues that every time people use Chrome’s private browsing mode, a full-page notice makes clear that other people who use the device won’t see their activity — but that it may still be visible to, among others, websites they visit and their internet service provider.

Andrew Schapiro, a lawyer for Google, said the company’s privacy policy “expressly discloses” its practices. “The data collection at issue is disclosed,” he said.

Another lawyer for Google, Stephen Broome, said website owners who contract with the company to use its analytics or other services are well aware of the data collection described in the suit.

Broome’s attempt to downplay the privacy concerns by pointing out that the federal court system’s own website uses Google services ended up backfiring.

The judge demanded an explanation “about what exactly Google does,” while voicing concern that visitors to the court’s website are unwittingly disclosing information to the company.

“I want a declaration from Google on what information they’re collecting on users to the court’s website, and what that’s used for,” Koh told the company’s lawyers.

The case is Brown v. Google, 20-cv-03664, U.S. District Court, Northern District of California (San Jose).

Updated: 3-14-2021

Google Must Face Suit Over Snooping On ‘Incognito’ Browsing

Google failed to kill a lawsuit alleging that it secretly scoops up troves of internet data even if users browse in “Incognito” mode to keep their search activity private.

The consumers who filed the case as a class action alleged that even when they turn off data collection in Chrome, other Google tools used by websites end up amassing their personal information. A federal judge on Friday denied the Alphabet Inc. unit’s initial request to throw out the case.

“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,” U.S. District Judge Lucy Koh in San Jose, California, wrote in her ruling.

The ruling comes as Google and Apple Inc. face intense scrutiny by lawmakers over their data gathering practices. Google has said it will next year eliminate third-party cookies that help advertisers keep tabs on consumers’ web activity and won’t employ alternative methods to track individuals.

“We strongly dispute these claims and we will defend ourselves vigorously against them,” Google spokesperson Jose Castaneda said in an emailed statement. “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.”

Three Google users filed a complaint in June claiming the company carries on a “pervasive data tracking business.” Google collects browsing history and other web activity data even after users employ safeguards to protect their data such as using “Incognito” private browsing mode, according to the complaint.

“Google knows who your friends are, what your hobbies are, what you like to eat, what movies you watch, where and when you like to shop, what your favorite vacation destinations are, what your favorite color is, and even the most intimate and potentially embarrassing things you browse on the internet — regardless of whether you follow Google’s advice to keep your activities ‘private,’” according to the complaint.

Google argued the plaintiffs consented to its privacy policy, which the company said explicitly discloses its data collection practices.

“Google also makes clear that ‘Incognito’ does not mean ‘invisible,’ and that the user’s activity during that session may be visible to websites they visit, and any third-party analytics or ads services the visited websites use,” Google said in a court filing.

The case is Brown v. Google LLC, 20-3664, U.S. District Court, Northern District of California (San Jose).

Updated: 3-22-2021

Facebook Rejected By Supreme Court In User-Tracking Lawsuit

The U.S. Supreme Court turned away an appeal by Facebook Inc., refusing to intervene in a lawsuit that accuses the company of violating a federal wiretapping law by secretly tracking the internet activities of users logged off the social-networking site.

The rebuff which came without comment leaves intact a federal appeals court decision letting four Facebook users press part of a suit over practices the company used in 2010 and 2011. The people are seeking class action status and as much as $15 billion.

Facebook and its tech-industry allies say the ruling by the San Francisco-based 9th U.S. Circuit Court of Appeals threatens to outlaw commonplace data-sharing techniques used to display online advertisements and other web content. Facebook’s appeal centered on the U.S. Wiretap Act, a 1968 law that is also being invoked in privacy suits against Alphabet Inc.’s Google and Microsoft Corp.

The users say Facebook violated the Wiretap Act by creating “Like” and “Share” buttons that third parties could add to their websites as so-called plug-ins. The users say the plug-ins captured information about them and sent it to Facebook, even if they didn’t click on the button.

The Wiretap Act bars the interception of someone else’s electronic communication without consent, but makes an exception for a “party” to the communication.

Facebook contends that when a user visits a website with a plug-in, the person’s browser sends information directly to the social-media company, making it a “party” under the law.

In rejecting that argument, the 9th Circuit said the exception doesn’t apply when a company is collecting information surreptitiously, as is alleged in the Facebook case. A different federal appeals court, the Philadelphia-based 3rd Circuit, reached the opposite conclusion when it sided with Google in 2015 in a lawsuit over its placement of cookies on users’ browsers.

Facebook now broadly discloses that it collects information when people, even those without accounts, visit websites with the company’s plug-ins. Facebook reached a settlement over its privacy practices with the Federal Trade Commission in 2011.

The case is Facebook v. Davis, 20-727.

 

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