The Lone Star State comes before Incognito mode.
In a petition filed Thursday that piggybacked on an earlier lawsuit against Google, Texas Attorney General Ken Paxton described the so-called “private” search setting as misleading and “deceptive” because of its location determination.
Paxton pulls out his dictionary and takes issue with Google’s use of the term “incognito,” which he says an everyday Texan would interpret as having “hidden his identity.” That’s from Merriam-Webster too interpretation†
“Google’s statements about incognito mode are false, deceptive and misleading,” the lawsuit said. “Not only do users not know that Google can and will collect data about them during private browsing, in fact there is no way for users to avoid many of Google’s data collection practices.”
Incognito browsing hides your search history from other people using your device. It doesn’t really stop Google or its advertiser friends from logging in and taking advantage of your search history. Does Paxton, an idiot election denier who’s been indicted for seven years, have a point?
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A Google spokesperson denied his claims and pushed back in an email sent to Gizmodo.
“The attorney general’s case is once again based on erroneous and outdated claims about our institutions,” the spokesperson said. “We have always built privacy features into our products and provide robust controls for location data. We strongly dispute these claims and will vigorously defend ourselves to set the record straight.”
The amended lawsuit is against Google for allegedly deceptively capturing user data while browsing in Incognito mode. “Google is doing this,” the indictment reads, “despite repeatedly reassuring Texans that they have control over what information generated during an incognito session is shared with Google and others.” For what it’s worth, Google is doing explain some of these details when you launch Incognito, but only after clicking a “learn more” link and clicking another drop-down menu again.
According to Paxton, Google “deceptively suggests that incognito mode allows Texans to control what information Google sends and collects.”
Paxton shits lawsuits and investigations with an amazing clip. Many of them jockey between absurdity, cruelty, and stupidity. He filed a lawsuit to overturn the 2020 election in favor of Donald Trump, claiming an “overthrow” by Joe Biden. The bar of the state is sue him for that† He has been under charges of fraud related to his stock transactions and investments since 2015. You can see a nightmarish half-smiling mugshot here (trigger warning). He has ordered DirecTV to keep the election-denying cable channel One America News on the air, or else. In this lawsuit against Google, he is clearly trying to win favor with the Republican grassroots by cracking down on the liberal specter of Silicon Valley, as evidenced by the hashtag #BigTech in a tweet from his office Thursday. At the same time he has sued Meta earlier this year about Facebook’s facial recognition software, claiming the service violated Texas privacy laws. He is spearhead an antitrust suit against Google alleging the company illegally used its marketplace power to control the way online ads are priced, a charge akin to the animosity behind bipartisan legislation now ready to hit the Senate floor† And that’s just one of five lawsuits he’s filed against Google.
So on the incognito issue, does Paxton have a point? Privacy experts and researchers who spoke to Gizmodo say: absolutely.
Private browsers: “In practice, they offer very little.”
To get a sense of whether Paxton is completely full of it or not, Gizmodo spoke to Bennett Cyphers, staff technologist at the Electronic Frontier Foundation. While Cyphers couldn’t vouch for all of the AG’s specific claims, he agreed that Google’s privacy claims surrounding Incognito are misleading.
“For a user who isn’t that advanced or even moderately advanced, it’s really hard to understand how many different ways data about you can be collected on the web.” The nuances involved in parsing all those techniques risk being washed away by simply referring to the setting as “incognito.”
“Private modes in web browsers were never designed as a general privacy solution. In practice, they offer very little,” independent cybersecurity and privacy advisor Lukasz Olejnik told wired in 2019. Olejnnik says user data generated during private browsing and regular sessions is tracked in the same way. Third-party sites can also detect whether or not a user is using private browsing. That, says Olejniks, is why paywall news sites like The New York Times or wired can still tell when an incognito reader has blown through their latest free article. Even if you only use private tanning to secretly watch videos (😉) on a shared device, researchers say someone with enough motivation can still find traces of that browsing history on the machine’s hard drive and memory.
EFF’s Cyphers criticized Google, which along with Chrome has the vast majority of the browser market share, for doing what it sees as significantly less for privacy than other companies.
“Google has more resources than anyone to build an advanced private browser, but their idea of a private browsing mode is a lot less sophisticated and nuanced than their competitors,” Cyphers says. He pointed to Safari and Firefox as examples of alternative browsers with more tailored methods that are preferable to Google’s approach of blocking all third-party cookies.
“Your private browsing mode only blocks your own browser from recording your traffic and it doesn’t hide your IP,” Daniel Markuson of Nord Virtual Private Network writes† “It doesn’t encrypt or route your traffic through a remote server like a VPN does. It only clears your browsing history, clears cookies when you close the browser, and deletes the data you enter in online forms. Your ISP, your employer, websites, search engines, governments and other third-party snoops can still collect your data and track your IP address.”
None of this might come as a surprise to casual Gizmodo readers, but it doesn’t necessarily come naturally to the majority of Chrome users who don’t have the time or interest to dig under the hood of Incognito. a 2018 study conducted by researchers from the University of Chicago and Leibniz University of Hanover, tackled the problem and found rampant misunderstandings about what Incognito and other proprietary tanning tools do and don’t do. 56.3% of participants in that survey believed Incognito was preventing Google from seeing their search history (it doesn’t), while 37% said they thought Incognito might prevent their employer from tracking them (that can not). About a quarter thought that using Incognito would somehow give them more protection against viruses and malware (again, no).
“Google offers a pretty decent, stupid way to protect your privacy, but it’s not very sophisticated and lacks a lot of ways that trackers can still collect data and break functionality on sites that don’t need to be broken if they use a more targeted and advanced privacy-protective approach,” said Cyphers.
Texas’ suit over Chrome’s incognito mode isn’t the only one
If throwing Ken Paxton makes you want to lose your lunch, we get it. It’s worth noting, though, that he’s not alone in taking Google to court over Incognito. Google was sued in 2020 as part of a class-action lawsuit accusing the company of violating the privacy of millions of users by tracking them while using incognito mode. The lawsuit, which searches at least $5 billion in damages, alleging that Google deliberately defrauded its users regarding Incognito’s functionality. Google CEO Sundar Pichai was Reportedly warned in 2019 not to list Incognito as private, but he continued to do so anyway. google tried to kill the case, but last March, a U.S. District Court judge said the company “has failed to notify users that Google is engaged in the alleged data collection while the user is in private browsing mode.” A broken clock like Ken Paxton is right twice a day. To put it more Texan way, even a blind pig can still sniff a few truffles.
In terms of what Google can do better, EFF’s Cyphers said Google could improve Incognito by following Firefox’s lead and adopting a tracker block list, restricting certain first party cookies, and taking more active anti-fingerprinting measures. “Actually, just try harder,” he said. Even with all of these steps accomplished, Cyphers says Google’s ad-based business model is inherently inconsistent with its privacy obligations.
“The best thing Google can do is separate their advertising business into a separate company so that there isn’t a huge conflict of interest at the center of the business model,” he said.
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