Google Reaches Deal in Billion Dollar Lawsuit Over Data Collection During "Private Browsing"

By Ethan Baron, The Mercury News (via TNS).

Google has reached a deal in a class-action lawsuit accusing it of making an Orwellian grab of “potentially embarrassing” data from tens of millions of people using the company’s “Incognito mode” and other private browsing, according to a court filing.

The three Californians and two others who sued the Mountain View digital-advertising giant on behalf of themselves and legions of other internet users in 2020 claimed the firm captured the data despite saying it would not.

Google, in a bid last year to get the case thrown out, argued in a court filing that it “never made any such promise.”

The plaintiffs were seeking for themselves and other affected internet users the return of what they claim are billions of dollars in profits Google made from the browsing data, plus unspecified damages of more than $5,000 for each plaintiff and affected user. In December 2022, a judge denied the plaintiffs’ attempt to entitle tens of millions of users to receive damages in the case.

The terms of the settlement, which must be approved by a judge, were not revealed in the joint court filing last week by both sides informing the court about the deal. Two days after the filing, Judge Yvonne Gonzalez Rogers cancelled the trial planned for Jan. 29.

The lawsuit filed in Oakland U.S. District Court alleged that Google’s data practices gave it and its employees “power to learn intimate details about individuals’ lives, interests, and internet usage.” The company, the lawsuit claimed, “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.’”

“Google has made itself an unaccountable trove of information so detailed and expansive that George Orwell could never have dreamed it.”

In August, Gonzalez Rogers issued an order agreeing with the plaintiffs that anyone using Incognito mode in Google’s Chrome browser could reasonably deduce from the opening screen that Google would not take their data. The company’s “Search & Browse Privately” help page — for users of Chrome and other browsers including Safari — said, “you’re in control of what information you share with Google when you search,” the judge noted.

Although Google had represented publicly since mid-2016 that it would not collect user information during purportedly private browsing, Gonzalez Rogers wrote that the firm “did so anyway, collecting, aggregating, and selling plaintiffs’ private browsing data without their consent.”

Even when people used private modes or Incognito in other companies’ browsers, when they visited a website using Google services, the company’s software directed the user’s browser “to send a separate communication to Google,” Gonzalez Rogers wrote in her August order.

Google and the plaintiffs — Chasom Brown, Christopher Castillo and Monique Trujillo of California, William Byatt of Florida and Jeremy Davis of Arkansas — earlier agreed that the class of people using private browsing modes since mid-2016 numbers in the tens of millions, the judge noted in an earlier order.

The plaintiffs claimed that Google linked users’ private browsing history to the user profiles the company builds for targeted advertising. Google denied making those connections, Gonzalez Rogers said.

Evidence submitted by the plaintiffs included internal Google communications stating that Google stores users’ regular and private browsing data in the same logs, uses those “mixed logs” to send users personalized ads, and that even if individual data points are anonymous on their own, that Google could aggregate them to identify specific users with a high probability of accuracy, the judge wrote.

Google in a court filing last year argued that its privacy policy “expressly disclosed” the ways data would be collected and used, and that the plaintiffs agreed to it.

In a statement to this news organization last year, Google said it strongly disputed the lawsuit’s claims. The firm said Incognito in Chrome gave users “the choice to browse the internet without (their) activity being saved to (their) browser or device,” but declined to address the claims that the company could identify users by mixing private and ordinary browsing data.

Gonzalez Rogers in a December 2022 ruling cited evidence introduced by Google indicating users’ awareness of the company’s private-browsing data harvesting varied widely. The judge declined to allow tens of millions of users to be certified as a class for the purpose of receiving any damages payments. But Gonzalez Rogers did certify those users as a class regarding the plaintiffs’ demand for a court order barring Google from “intercepting, tracking, or collecting” data from users’ private browsing.

The joint court filing last week said Google and the plaintiffs reached the deal through mediation, and that they expected to present the settlement agreement for court approval by late February.

Technology