A federal judge rejected Google's attempt to dismiss a lawsuit seeking more than $5 billion over allegations that the search engine tracked user data despite a request that it not.

U.S. District Judge Yvonne Gonzalez Rogers said in an order filed in the Northern District of California on Monday that she could not find proof Google users had consented to have information collected when using tools designed by Google to provide the highest level of privacy. The original lawsuit argued that Google tracked user activity via cookies and apps when the user activated incognito mode, a feature in Google Chrome that is allegedly supposed to stop collecting data through cookies or online trackers. While Google claimed that incognito mode protected user privacy, Rogers and the plaintiff cited a series of statements and agreements, including its privacy policy, that implied it did not.

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"Taken as a whole, a triable issue exists as to whether these writings created an enforceable promise that Google would not collect users' data while they browsed privately," Rogers wrote.

Rogers's order denies Google's requested summary judgment and means the case will proceed.

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"Incognito mode in Chrome gives you the choice to browse the internet without your activity being saved to your browser or device," Google spokesman Jose Castaneda said in a statement. "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 lawsuit is attempting to acquire at least $5,000 in damages per user due to violations of federal wiretapping and California privacy laws, or an estimated $5 billion.