• by Wendy Davis , March 3, 2023

Siding with Google, a federal appellate court has refused to intervene in a privacy battle over the Chrome browser's incognito mode.

The users had asked the 9th Circuit Court of Appeals to hear an immediate appeal of a trial judge's decision prohibiting them from seeking monetary damages from Google on a class-wide basis.

The move leaves in place a decision issued in December by U.S. District Court Judge Yvonne Gonzalez Rogers in the Northern District of California. She ruled that the users could proceed on a class-wide basis with a request for an injunction that could restrict Google's data collection. But she also ruled that the couldn't seek damages on a class-wide basis, because claims for monetary damages would hinge on individualized questions.

The battle between Google and the Chrome users dates to June of 2020, when a group of users alleged in a class-action complaint that Google collects some data when people browse in incognito mode. Specifically, the users alleged that Google collects data including IP addresses, browser and device information from incognito users, when they visit sites with Google Analytics or Google Ad Manager.

The users argued that Google's statements about incognito mode didn't adequately inform people that their data would be collected. They claimed in the complaint that Google violated its contract with users, and ran afoul of the federal wiretap law and various California laws.

Gonzalez Rogers said late last year that the Chrome users' claims for monetary damages didn't lend themselves to class-action status, because the claims would turn on whether individual users consented to the alleged data collection.

“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,” Gonzalez Rogers wrote in her order.

That portion of the ruling represented a significant victory for Google, given that individual users typically can't afford to sue companies for monetary damages over alleged privacy violations.

The Chrome users then asked the 9th Circuit to hear an immediate appeal of that decision, arguing that implied consent isn't a defense to the claims in the complaint.

They argued that Google promised to seek users' explicit consent “before reducing their privacy rights,” and that Google failed to show that any Chrome users actually gave explicit consent to the alleged data collection.

As is customary, the 9th Circuit didn't give a reason for declining to hear an immediate appeal.