Google Sued Over Chrome Tracking Even During “Private Browsing Mode”

Plaintiffs Chasom Brown, Maria Nguyen and William Byatt filed a class action complaint against Google for federal wiretap violations, Invasion of Privacy Act violations, invasion of privacy, and intrusion upon seclusion. The plaintiffs alleged that Google continues to track Google Chrome user data even if a user activates the web browser’s private browsing mode despite claiming that private browsing mode would prevent this information from being shared with Google. The plaintiffs said Google’s conduct and statements are deceptive and gave users a false sense of control over their data.

According to the complaint, Google assures consumers that they “in control of what information [they] share with Google.” Users can also adjust their privacy settings, including what data is collected and how it is used. However, plaintiffs claimed that “[n]othing could be further from the truth.” They said “Google tracks and collects consumer browsing history and other web activity data no matter what safeguards consumers undertake to protect their data privacy.” Google’s “private browsing mode” or “Incognito mode” still “tracks the users’ browsing data and other identifying information.” The tracking occurs through Google Analytics, Google Ad Manager, and other applications or plug-ins.

When someone visits a webpage or opens an app using these services, “Google receives detailed, personal information such as the user’s IP address,…what the user is viewing, what the user last viewed, and details about the user’s hardware.” The plaintiffs argued that this practice is “in contravention of federal and state laws on wiretapping and in violation of consumers’ rights to privacy.” Additionally, the complaint said this is deceptive to consumers and provides a false sense of control over their data and privacy.  

The plaintiffs claimed that Google violated the Federal Wiretap Act, which “prohibits the intentional interception of the contents [of] any wire, oral, or electronic communication through the use of a device”; it protects the “sending and receipt of communications.” The plaintiffs stated that “Google’s actions in intercepting and tracking user communications while they were browsing the internet using a browser while in ‘private browsing mode’ was intentional…[the interception] was done contemporaneously with the Plaintiffs’ sending and receipt of those communications.” There was no remedial action taken by Google. These intercepted communications “included ‘content’ of electronic communications made from the Plaintiffs to Websites” this information was allegedly intercepted and collected by Google without authorization while a user was in private browsing mode.

The plaintiffs argue that Google’s actions constitute an invasion of privacy against Google, stating that the “right to privacy in California’s constitution create a right of action against…Google.” The constitutional right is meant to “protect against unnecessary information gathering, use, and dissemination by public and private entities, including Google.” The plaintiffs must demonstrate that Google invaded “(1) a legally protected privacy interest; (2) where the plaintiff had a reasonable expectation of privacy in the circumstances; and (3) conduct by the defendant constituting a serious invasion of privacy.” Plaintiffs also point to Google’s Privacy Policy, where it stated it would not track users using private browsing mode. As a result, plaintiffs state that they had a reasonable expectation of privacy. They claim that Google’s conduct was a serious invasion of privacy because of all of the laws and rights it violated, as well as the number of individuals affected by this invasion of privacy; in addition to the fact that the tracking was surreptitious.

The plaintiffs claimed intrusion upon seclusion against Google because it intruded into a private space, the private browsing mode, in a manner that violated its own Privacy Policy and “intentionally intruded upon the Plaintiffs’ solitude or seclusion in that it effectively placed itself in the middle of conversations to which it was not an authorized party.” Consequently, Google was able to collect sensitive and personally identifiable information as a result of its conduct. 

The suit is filed in the Northern District of California. The plaintiffs are represented by Boies Schiller Flexner, and desire certification as a class action.

Google’s privacy practices were recently questioned when Arizona sued Google over its location tracking.