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Google is in the legal firing line again. This time it will be forced to explain in court what exactly Incognito mode is after a group of people took the company to court because they claim that when a user opts for the Chrome browser’s Incognito mode, Google continues to track user activity. The class action, which was initially launched last July alleges that Google is in violation of wiretapping and privacy laws.

Google Incognito Mode

The claimants, who are suing for at least $5 billion in damages, claim that Google is surreptitiously collecting information about what people view online and where they browse. The complaint, which was  filed in the federal court in San Jose, Calif.,  says that Google gathers data through Google Analytics, Google Ad Manager and other applications and website plug-ins, including smartphone apps, regardless of whether users click on Google-supported ads.

According to reports in the financial news service Bloomberg (subscription required)  Google asked the courts to dismiss the case when it was first filed. However, U.S. District Judge Lucy Koh, ruled recently that Google has a case to answer and the case will go ahead. The ruling states that Google does not notify users that Google engages in the alleged data collection

At a time when Google and other big technology companies are under scrutiny about the way they access user data,  Google has responded by saying it is clear what happens in Incognito mode. In a statement to Endgaget, Google spokesperson José Castañeda said, “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.”

It remains to be seen how this case unfolds, but clearly privacy is one of the major concerns of people inside and outside the digital workplace. Last October, for example, Google, in an effort to reassure people about the privacy of some of its apps added new privacy features to its Maps, YouTube and Voice Assistant services, including an Incognito mode option and automatic data deletion.

Apple has also been actively trying to convince users of its privacy credentials. On its developer blog, it announced that starting with iOS 14.5, iPadOS 14.5 and tvOS, which are due to be released this spring, users will have to provide their explicit permission through the AppTracking Transparency(IDFA) framework to track them or access their device’s advertising identifier.

Tracking, it explains, refers to the act of linking user or device data collected from your app with user or device data collected from other companies’ apps, websites, or offline properties for targeted advertising or advertising measurement purposes. Earlier this month, Microsoft said it would stop IDFA in LinkedIn, while Google announced in January that it would stop collecting this data in its own apps. The heat is on and tech companies that do not protect privacy are likely to lose audience share in the future.

Related Article: 4 Ways a Chief Privacy Officer Can Help Your Company

Relative Privacy

The Google class action suit seems to show, however, that privacy is a relative term when it comes to technology. Can users ever be sure that their privacy will be protected? Beth Magnuson is senior legal editor for privacy and data security at Eagan, Minn.-based Thomson Reuters Practical Law. She says that while the Google Incognito case is still in the preliminary stages, there are two main takeaways that all companies should remember about managing consumer data.

  1. Communicate: It is the company’s responsibility to clearly communicate data usage in their disclosures — e.g. not making broad, sweeping statements or only noting data usage in the fine print.
  2. Product Description: The disclosure should match the technical capabilities of the product. This can be challenging. In 2014, Snapchat settled with the FTC for claiming photos would disappear and giving the impression to consumers that their personal data would as well. It emerged afterward that reality did not match the technical capabilities of Snapchat.

“In the Google Incognito case, their disclosure statement presented information to the consumer in a way that created the perception their data was private, particularly from Google itself, when it was not,” she said. Keeping your data private is different from keeping it safe. In this instance, Google did not make it clear enough for consumers who don’t fully understand the way data moves through the advertising ecosystem.” It is for this reason that it is  important for companies to ensure their disclosures fully map back to the technical capabilities and commercial realities.

Misconceptions About Incognito

The problem is that there are various misconceptions about using private browsing or Incognito mode browsing,  Ankit Thakor, head of digital marketing at the online software review platform SoftwareWorld.co said. There are four common misunderstanding:

  1. Incognito mode gives protection against viruses and malware.
  2. It keeps your ISP safe from seeing where you have been online.
  3. It stops websites from seeing your physical location.
  4. It disappears the bookmarks once you switch it off.

Incognito mode will keep your local browsing private, but it will not stop your ISP from seeing where you have been online. ISP has access to all the browsing activities. If you want more privacy, there are many other ways like using VPN — resembles browsing from various locations — while the TOR browser will help mask online activities. While this may cover the needs of consumers, when it comes to the work of incognito mode, it only helps in keeping your browsing history private.

“Incognito or private browsing just keep your history confidential. Using Incognito mode doesn't mean that you are up to something dangerous,” he said. “It is just like keeping your personal and professional life separate. It is useful when you love your privacy and do not want data companies to collect data about you.”

Online Identities

Dave Nilsson is the founder of  ConvertedClick, a UK a digital marketing company. He points out that even in incognito mode users can still be tracked by advertisers, and websites. This means they can see where you have been online and detect your physical location. Incognito mode works by deleting website cookies and browsing data after your session ends. So, anyone using your device will not be able to find what you have been searching on the web. But this algorithm is incompetent when it comes to shielding your privacy.

More to the point, he says, Google’s Incognito mode does nothing to hide your data. Advertisers and websites use ‘geolocation’, a technology that helps them track your location. Plus, companies gather information by embedding various software tools on their websites. They use this information to create a digital fingerprint which includes data about your browser, operating system, timezone, language, location, and other device specifications. So, your information is always floating on the web with tech-giants having a keen eye to sell it.

Your IP address is directly tied with your device’s online identity and Incognito mode does nothing to hide it. This means you cannot mask your online activity from other people on the network. These are surely worrying signs for the users and I feel we are constantly being duped in the name of convenience.

As a final thought, he also points out that incognito was never meant to guarantee privacy. “I would also like to point out that Google’s incognito mode was originally created to facilitate the idea of shared computers and it had nothing to do with masking your identity and privacy,” he said. Private browsing offered a solution by avoiding chaos when multiple users browsed on the same system. “This speaks volumes about the lack of transparency in the webspace," he said.