• by Wendy Davis  @wendyndavis, December 27, 2023

Google has agreed to settle claims that it wrongly collected data about users who attempt to keep their web activity private by using Chrome's “incognito mode,” according to papers filed Tuesday with U.S. District Court Judge Yvonne Gonzalez Rogers in Oakland, California.

The company has so far agreed to a “binding term sheet,” which it expects to finalize within 30 days and then present to Rogers within 60 days. Terms haven't yet been disclosed.

If approved by Rogers, the deal will resolve a battle dating to June 2020, when California residents Chasom Brown and Maria Nguyen and Florida resident William Byatt alleged in a class-action complaint that they were tracked by Google even though they used the Chrome browser's incognito mode to navigate the web.

They specifically alleged that even in incognito mode, visiting a site that uses Google Analytics or Google Ad Manager results in Google's collection of IP addresses, browser and device information, and web pages' content.

Their complaint includes claims that Google violated wiretap laws and that it engaged in “intrusion upon seclusion” -- a broad California concept that allows people to sue for “highly offensive” privacy violations.

Google unsuccessfully urged Rogers to dismiss the claims without a trial, arguing that users “expressly consented to the relevant data collection and its use for advertising,” by accepting Google's privacy policy and other terms of service.

“The Privacy Policy and Account Holder Agreements disclose that Google collects the at-issue data when users visit websites choosing to use Google services and that Google may use the data for advertising,” the company wrote in its bid for summary judgment.

Rogers rejected that argument in August, writing that Google's privacy policies failed to “unambiguously” disclose that it would collect data from people who browsed in incognito mode.

“Google’s motion hinges on the idea that plaintiffs consented to Google collecting their data while they were browsing in private mode,” Rogers wrote at the time. “Because Google never explicitly told users that it does so, the Court cannot find as a matter of law that users explicitly consented to the at-issue data collection.”

Rogers previously ruled that if the users prevailed after a trial, they would be able to seek an injunction against the company, but not monetary damages.