I think the law would look at many questions like these by asking "what would the normal person think incognito mode was". Most people can't even write an excel formula. Not only do they not know this mode wasn't private, they don't even know enough to know understand the ways in which it wasn't private. Youre saying it doesn't claim to be a VPN, I'm saying that even if it was, mot people don't know what a VPN is, so they can't tell if they need it or if it's even a good thing.