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If you thought Google Chrome’s incognito mode prevents third parties from seeing your browsing history, you’d be wrong, but you wouldn’t be alone. Google is currently trying to avoid a potential lawsuit alleging it collected the web activity of Chrome users when they were in incognito mode.

The legal battle began in April 2021, when three Chrome users filed a class-action complaint alleging that Google tracks and stores users’ browsing history and other data regardless of the actions those users take to protect their privacy . The complaint accused Google of using growing public concern about data privacy to push “Incognito” mode, a version of Chrome that Google itself touts as a way to “surf the web privately” and “control what information” [users] share with Google.”

Many tech-savvy web surfers know about Incognito’s lack of true privacy. Google says Incognito prevents other people using the same device from seeing your browsing history, while ISPs, network administrators, and websites themselves can still track your activity. But it shouldn’t take a mini-investigation to find that out, and last year’s complaint alleges that Google is taking advantage of the casual user by making it sound like Incognito is more secure than it actually is.

Of course, that could be the case. First court documents noticed from Bloomberg last week revealed that Google employees were aware of Incognito’s lack of true privacy. “We should stop calling it Incognito and stop using the Spy Guy icon,” one engineer said in a team chat in 2018. The comment prompted jokes about what might replace the existing icon, including an image of The Simpsons character Guy Incognito , who looks like Homer Simpson in disguise, but isn’t really him. Later, the same engineer indicated 2018 study showing that more than half of Chrome users believe that Incognito prevents Google from collecting their browsing history.

Executives also knew about Incognito’s hidden discretion. Last year, marketing chief Lorraine Toohill emailed CEO Sundar Pichai to say the company should consider making Incognito “truly private.” “We’re limited in how heavily we can promote Incognito because it’s not really private, which requires really fuzzy, hedging language that’s almost more harmful,” Toohill said. A product manager responded with a suggestion to change the text on the new Incognito tab page due to a lack of transparency, but the suggestion was ultimately ignored.

Google has been trying to get the case dismissed since the original complaint was filed, but has so far been unsuccessful. The 9th Circuit Court of the Northern District of California is currently deciding whether to allow the case to move forward as a class action. If given the go-ahead, millions of Chrome users in the US could collectively pursue statutory damages ranging from $100 to $1,000 per infringement.

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