• by Wendy Davis  @wendyndavis, August 21, 2020

Google is asking a federal judge to throw out a lawsuit accusing the company of violating federal and California privacy laws by collecting some information about Chrome users who browse the web in "incognito" mode.

“This is not a case where Google received data surreptitiously, much less deceitfully,” Google argues in papers filed Thursday with U.S. District Court Judge Lucy Koh in San Jose.

The company argues that the potential class-action lawsuit, brought in June by California residents Chasom Brown and Maria Nguyen and Florida resident William Byatt, “is predicated on a willful misreading of Google’s disclosures.”

Brown and the others allege that they were tracked by Google, despite using the Chrome browser's incognito mode to visit sites including CNN.com, Apartments.com and NYTimes.com.

They claim 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.

When Chrome users command the browser to open an incognito window, they are greeted with a message stating that Chrome won't save browsing history, cookies and site data, and information entered in forms. But the message also tells users their activity may be “visible” to websites they visit.

That type of data can be used for “device fingerprinting” -- a controversial tracking technique that doesn't rely on cookies. 

Google is urging Koh to dismiss the lawsuit for several reasons. Among others, the company says it tells users that incognito mode only prevents data from being stored on their devices.

“Incognito mode prevents previously-set cookies on the browser from being shared with the websites visited, in order to make the device appear as a new user,” Google writes. “'Incognito” does not mean “invisible,' however, and the fact that some unidentified user visited websites and reviewed certain pages is not hidden from the websites themselves, or from any third-party analytics or ads services they use.”