Does Email Tracking Violate The Rule of Professional Conduct?

email trackingQUESTION: I have finally embraced email as my primary communication tool with clients as well as most of my opposing counsel and even the court. As I tend to serve the new generation of clients more and more, prompt email communication is demanded and expected.

I have heard of email tracking software, often used by marketing companies to monitor email traffic. While this would be helpful in my practice at times, are there ethics considerations to tracking email? I mean, I send some important documents through the U.S. mail with a return-receipt requested, so is this similar with email?

ANSWER: While email has revolutionized the pace at which we can respond to our clients’ needs and communicate with others, it brings about concerns far beyond what traditional “snail mail” deliveries entail. There may be more than meets the eye when you open an email.

Sure, there is the content in the body of the email, the signature information of the sender, and often attachments. Sometimes you even get a “read-receipt request” to reply to the sender that you have read (or at least opened) the email. But there can be another unseen component to it that allows the sender to learn a lot more than whether the email has been opened.

Spying with Email

Email tracking software, also known as “web bugs,” “web beacons” or “spymail,” is likely employed in just about every marketing email you receive. Companies use these tools to evaluate the effectiveness of email blasts: Did the recipient open the email? On what type of computer, cellphone or tablet was the email opened? How long was it open before it was closed or deleted? Where was the email opened (via what IP address)? Was a link clicked from inside the email? And so on.

READ MORE Attorney at Work April 17, 2018

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Mark C. Palmer

Mark C. Palmer

As Professionalism Counsel, Mark leads professionalism programming through the statewide mentoring program, collaborating with stakeholders from Galena to Cairo. Mark also supports the development and delivery of educational programming to lawyers and in law schools. When not in the office, you will likely find Mark and his wife busy raising their twin daughters, enjoying his passion of traveling and eating around the world, and training for his next half marathon.
Mark C. Palmer

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