How Legal Is It To Track Emails?

How Legal Is It To Track Emails

Tracking emails refers to monitoring opens and clicks. It helps the sender follow up with job candidates, leads, and business partners. 

Nowadays, almost everyone prefers to communicate via e-mail. Communication with clients, customers, relatives, and colleagues is fast, efficient, and effective. It is possible, however, to send an important email to someone and the recipient claims that he did not receive it despite going through it. 

When this happens, it becomes important to determine whether the recipient did not receive the email or if he was lying. Email tracking software allows you to determine whether recipients have received and read your emails. 

What is Email Tracking? 

Email tracking refers to tracking opens and clicks on emails sent. Senders can follow up with job applicants, leads, and business partners in this way. Email tracking can also be referred to as tracking the metrics of your company’s email marketing campaigns. You can improve the efficiency and quality of such campaigns by doing this. 

You can use email trackers as browser extensions if you use Google Chrome. Your email tracker will send you an email or a computer notification when your recipient opens the email. 

Is tracking emails legal or not? 

Many people wonder whether it is legal for companies to track your emails. Organizations do not track your email account. Instead, they monitor whether you read their sent emails. Marketing campaigns or the latest updates and offers may be included in these emails. Therefore, email tracking is not illegal. 

Email Tracking vs. Email Spying 

When you open an email, there may be more to it than meets the eye. In an email, there is the content in the body, the sender’s signature, and sometimes attachments. There are even times when you receive a “read-receipt request” from the sender to confirm that you have read (or at least opened) the email. In addition to knowing whether an email has been opened, there can be another, unseen component to it. 

Email spying 

Every marketing email you receive likely uses email tracking software, also known as “web bugs,” “web beacons,” or “spymail.” Companies use these tools to determine whether an email blast was effective: Did the recipient open the email? Was the email opened on a computer, smartphone, or tablet? How long did it remain open before it was closed or deleted? What IP address was used to open the email? Did you click on a link inside the email? So on and so forth. 

Consider using such a tool to track emails in a law practice. Imagine you are negotiating a settlement in a civil matter, and you send opposing counsel an email with your client’s offer. Within a few days, opposing counsel opens that offer email several times from the IP address of that attorney. Later, you learn that the email has been opened at several other IP addresses, including that of opposing counsel’s client and the insurance carrier for that client. 

Your email tracking software confirms that at least 11 devices at eight different locations have viewed the email for more than 10 minutes during the workweek. You can tell by the spyware included with the email that they are seriously considering, or at least discussing, your offer. All of this is done without their knowledge or consent. 

Professional Conduct Rules are violated by Spymail 

Several jurisdictions, including the Illinois State Bar Association (Opinion No. 18-01, January 2018), have ruled that using hidden email tracking software is unethical for many reasons. There is also an Ethics Opinion No. 2016-01 from the Alaska Bar Association; an Ethics Opinion 749 from the New York State Bar Association; and a Formal Opinion 2017-300 from the Pennsylvania Bar Association. 

As the tracking software typically uses an invisible image or code in the email message, it can’t be detected or blocked by the original recipient or subsequent recipients. Email tracking requests such as read-receipts or “delivery receipts” offered by many email programs are not to be confused with this. According to the ISBA opinion, such an operation is analogous to certified mail: “This function does not appear to raise the client protection concerns discussed in this opinion because it provides only confirmation of receipt instead of information regarding how the email will be handled next.” 

Despite the Illinois opinion’s absence of express mention of this, Constant Contact and MailChimp do not violate the law, according to the Pennsylvania opinion, because (1) the emails are mass emails, and they are not tailored to each client’s needs; (2) those services display their links to encourage users to click on them; and (3) lawyers and other recipients know that they are clicking on the links.”  

According to the ISBA, there are instances where a lawyer’s use of tracking software does not involve client interests or otherwise involve the representation of a client, such as in emails regarding his own business activities. Those situations are not addressed in this opinion. 

According to the ISBA opinion, the use of such tools by counsel in communications with other lawyers constitutes dishonesty or deceit under Illinois Rule of Professional Conduct 8.4(c). The deception can penetrate the attorney-client relationship between the receiving lawyer and that lawyer’s client, potentially revealing protected, extraordinary insight that could not only be protected, but might be quite relevant as well. 

ISBA opinion continues, stating that email tracking tools violate Illinois Rules 1.6(a) (duty to preserve confidential information; see ABA Model Rule 1.6) and 1.9(c)(2) (duty to preserve confidential information of former clients; seeABA Model Rule 1.9) because they are unknown and “unwarranted intrusion” upon the attorney-client relationship. As discussed in Comment 1 to Illinois Rule 4.4 (respect for third persons; see ABA Model Rule 4.4), the information obtained through email tracking software may be inappropriately obtained evidence in violation of the rights of a third party. 

Also see the Preamble to the Model Rules of Professional Conduct [2], in part: “As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.” 

Get to know your audience by tracking and collecting critical information 

Trying to guess which emails will capture your audience’s attention is a waste of time and energy. Using an email plug-in will help you create, curate, and personalize content. 


What is Riptide?  

Riptide is a lightweight email plug-in that helps teams. It helps you steer clear of lackluster titles, ambiguous value propositions, and bad timing – so you can’t waste time and effort on those either. With Riptide, you can eliminate uncertainties and guessing games and maximize endless opportunities to connect with your target audience.   

Riptide helps teams curate personalized content with a lightweight email plug-in. By providing your team with the right analysis tools, Riptide eliminates that uncertainty and maximizes your chances of connecting with your audience. 

If you need more help with your email marketing, take advantage of smart marketing tools. Content marketing is a powerful tool, but it can be difficult to know where and how to start. With so many moving parts, it’s easy to get overwhelmed. But if you approach your content with a comprehensive strategy in mind, the results will speak for themselves—and they may even change how you think about marketing in general!  

SwaysEast offers a suite of smart digital marketing tools to help brands create innovative solutions and experience their very own AI digital marketing success stories. Book for a FREE APPOINTMENT today.