That's not quite how the law works. If I tell you to get off of my property, and you stand on my lawn, you're trespassing, even if I didn't put up a military-grade wall. Or if I have a basic chain link fence, and you climb over it, you're clearly trespassing in situations where without the fence, if you were to incidentally walk across my lawn, you'd be okay.
The point of digital trespass laws is very similar. Just because your technological measures are imperfect (as the bullets say) doesn't authorize you to circumvent them.
What's damaging in this case is that Google created the signalling mechanism, gave it to users, and then intentionally chose to circumvent it.
Courts are also not machines. A lot of this comes down to intent and reasonableness. If you're fingerprinting my browser when I'm in incognito, that feels like an intentional digital trespass which courts would probably recognize. If you're incidentally collecting my IP in your server logs, that feels okay. Programmers get caught up in this all the time -- they read laws and contracts like code (strict literal meaning). Lawyers read them looking at things like impact, intent, whether things are substantially similar, and so on.
> What's damaging in this case is that Google created the signalling mechanism, gave it to users, and then intentionally chose to circumvent it.
Absolutely not.
Incognito mode, as in every browser, means you're history isn't recorded on your machine. And as GP said, Chrome even explicitly explains your ISP or websites may still track you.
And Chrome isn't doing anything to circumvent it.
Intent and reasonableness here is perfectly fine on Google's part. Incognito mode successfully prevents storing history on your machine. Analytics successfully track you. And nobody's being misled. Incognito mode has never been advertised or marketed as anti-tracking, because it's not supposed to be. It's just a convenience to clear cookies and history, nothing more.
If there is a law against Google collecting analytics data, then it's going to be illegal whether in incognito mode or not. That would be the situation with trespassing. There's a law against it.
But there is no such law against collecting browsing data. So there has to be some other legal theory under which Google would be liable. One example would be deceptive practices or fraud, where Google says one thing then does another. Unfortunately, we don't have the full text of the complaint yet as far as I can tell. But your "that's not how the law works" dismissal is actually going to be totally irrelevant to the complaint, because there's no legal comparison between trespassing and collecting browsing data.
With trespassing, if I cross your lawn, I'm probably okay. If I cross your lawn and there's a "no trespassing" sign or a fence, I'm probably not okay. It's vague.
There are equivalent laws for technology. For example, you have the confusingly vague CFAA. If I've indicated to you that I don't want you grabbing files from my computer, and you do, you've likely broken it. It's even called digital trespass. On the other hand, if you have a public FTP server up, I can grab files. If you have a public FTP server up, and you've told me I'm not permitted to access it in person, or in an automated banner, or in an automated banner which my browser never shows me, things get legally complex.
Pretending "private browsing" or "incognito mode" doesn't act like such a sign isn't very honest. Google disclaims this information might be visible to web sites, which is honest, but most indications are given that it's intended to help screen some of that. Intentionally working around incognito mode is almost certainly at least somewhat illegal.
The point of digital trespass laws is very similar. Just because your technological measures are imperfect (as the bullets say) doesn't authorize you to circumvent them.
What's damaging in this case is that Google created the signalling mechanism, gave it to users, and then intentionally chose to circumvent it.
Courts are also not machines. A lot of this comes down to intent and reasonableness. If you're fingerprinting my browser when I'm in incognito, that feels like an intentional digital trespass which courts would probably recognize. If you're incidentally collecting my IP in your server logs, that feels okay. Programmers get caught up in this all the time -- they read laws and contracts like code (strict literal meaning). Lawyers read them looking at things like impact, intent, whether things are substantially similar, and so on.