• by Wendy Davis  @wendyndavis, December 13, 2022

Chrome users who are suing Google for allegedly collecting data about people who browse web in “incognito” mode can't seek monetary damages on a class-wide basis, a federal judge ruled this week.

But the users can proceed on a class-wide basis with a request for an injunction that could restrict data collection by Google, U.S. District Court Judge Yvonne Gonzalez Rogers in the Northern District of California said in a 34-page decision.

The mixed ruling stems from a lawsuit filed in June of 2020 by California residents Chasom Brown and Maria Nguyen and Florida resident William Byatt. They alleged in a class-action complaint that when Chrome users are in incognito mode, their visits to sites with Google Analytics or Google Ad Manager result in the collection of IP addresses, browser and device information, and web pages' content.

That type of information can be used for digital fingerprinting -- a controversial tracking technique that relies on characteristics of users' devices.

Google urged Gonzalez Rogers to deny the users class-action status, arguing that it would contend users consented to the data collection.

The company added that issues surrounding user consent could only be litigated on a case-by-case basis.

“Google is entitled to argue at trial that the particular combination of information a given class member reviewed placed her on notice of the challenged conduct,” the company argued in papers filed with Gonzalez Rogers in August.

The judge agreed with Google on that point.

“A factfinder, in determining whether class members impliedly consented to the alleged conduct would have to determine the sources of information to which each class member was exposed,” she wrote.

“Identifying what members impliedly consented to the alleged conduct, and what members did not, would undoubtedly drive the litigation. That is because consent is a defense to all of plaintiffs’ claims,” the judge continued.

That part of the ruling represents a significant victory for Google -- largely because individual users often can't afford to seek monetary damages for alleged privacy violations. 

But the ruling also allows the users to proceed with a class-action for purposes of obtaining an injunction that could restrict Google's ability to collect or store data from users in incognito mode.

The judge said many of Google's arguments against class-certification “hinge on the general proposition that Google’s customer base is too big for class treatment.”

“The notion that Google is too big to be held accountable does not persuade,” she wrote. “The court finds certification for injunctive relief only appropriate.”