Irony alert: Lawsuit alleging Chrome’s Incognito Mode isn’t will settle on unknown terms

Google accused of tracking you even when you think it won’t

The lawsuit brought against Google by netizens upset Incognito Mode in Chrome did not fully anonymize their activities looks set to settle before going to trial.

A US court filing [PDF] dated December 26 records that Google and the plaintiffs have agreed to a term sheet that, if approved by the judge, will conclude the matter. Those terms of the proposed settlement weren’t disclosed. But the parties seem sufficiently confident a deal will be done that another filing vacates the court date held for the matter, so all concerned can stop preparing for a trial and focus on nailing down the agreement.

The case kicked off in 2020 when concerned netizens argued Chrome’s Incognito Mode – which Google promotes as offering the chance to “browse the web privately," a concept Google illustrates with an icon depicting a spy – does not actually prevent the ads and search giant from observing “what the user is viewing, what the user last viewed, and details about the user's hardware."

The plaintiffs said Google’s Analytics and Ad Manager services, among other things, can be used by Google to monitor people's Incognito Mode browsing sessions. If you visit a site that embeds Google's analytics code, or one of its ads, the internet titan can (for instance) associate you via your IP address with those sites, and thus get an idea of what you're into online even with Incognito Mode engaged.

The Big G can absolutely do that, but whether it actually is in a meaningful and misleading way was at the heart of the allegations in the case. The lawsuit contended Google’s practices “intentionally deceive consumers,” and the corporation must therefore “be held accountable for the harm it has caused to its users.”

Google’s counterargument relied on the terms of use for Chrome, which the corp asserted points out that it doesn’t stop collecting info when users enter Incognito Mode.

In 2021, Google tried to have the matter thrown out – and failed to win that round.

The case has burbled along ever since: when The Register logged on to the USA’s infamously low-fi Public Access to Court Electronic Records (PACER) web application, we found 1,090 documents have been filed across the life of the case.

Document number 1,089 mentions the settlement.

The plaintiffs initially suggested damages of $5 billion, with around $5,000 paid to each of a million potential complainants. Sadly, document 1,089 doesn’t mention the agreed settlement.

The Register has asked Google for comment on the settlement and will update this story if we receive a substantive response. In the meantime, it should be clear: Incognito Mode is a handy way of ensuring you're not logged into a site when you visit it, but it is not a Tor-style cloak that makes you anonymous. ®

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