In a proposed class action lawsuit filed in the U.S. District Court for the Northern District of California, Google is facing a potential $5 billion dollar class action for alleged privacy law violations.  The complaint alleges that millions of Google users have been impacted and asks for damages of at least $5,000 per harmed individual.  Implicated are multiple Google offerings, including Google Analytics, Google Ad Manager, website plug-ins, and the Google Sign-In button leveraged by many websites.  The ubiquity of these products and services is well known to many who participate in the online ecosystem.  According to the complaint, over 70% of online websites and publishers use Google Analytics alone. 

At the crux of the complaint is the allegation that internet use was tracked by Google, even when users were using a browser in what is often referred to as “private browsing mode.”  Google spokesperson Jose Castaneda has responded that “Incognito mode in Chrome gives you the choice to browse the internet without your activity being saved to your browser or device. As we clearly state each time you open a new incognito tab, websites might be able to collect information about your browsing activity during your session.”  The plaintiffs have taken a very different view:

To prevent information from being shared with Google, Google recommends that its consumers need only launch a browser such as Google Chrome, Safari, Microsoft Edge, or Firefox in “private browsing mode.” Both statements are untrue. When users undertake either—or both—of the aforementioned steps, Google continues to track, collect, and identify their browsing data in real time, in contravention of federal and state laws on wiretapping and in violation of consumers’ rights to privacy.

At this time, the complaint provides multiple causes of action:

• Violation of the Federal Wiretap Act

• Violation of the California Invasion of Privacy Act (“CIPA”)

• Invasion of Privacy under California’s Constitution

• Intrusion Upon Seclusion

We expect that this case may have important implications for how companies choose to explain the data collection practices of their products and services to users from which data will be collected.  The complaint cites to various representations allegedly made by Google regarding its data collection practices to support the assertion that “Google affirmatively represented to Plaintiffs and the Class that browsing the internet using a browser with ‘private browsing mode’ activated, would allow them to be [sic] prevent  Google from tracking their personal information, browsing history, or other web activity data.”