Email Tracking Programs Create Ethics Quandaries & Information Treasure Troves

February 14, 2018 Casey C. Sullivan

When you open an email, you might be getting a lot more than just a message from a colleague. Unbeknownst to you, that email could contain a tiny tracking pixel that can inform the email’s sender not only that you’ve opened their message, but where you were when you opened it, what device you used to do so, and how long you interacted with the information.

If you think that's invasive, you’re not alone. At least four state bar associations have found that such email tracking programs, when used in communications with other lawyers or clients in the course of representation, violate an attorney’s ethical duties.

Such opinions are an important reminder of an attorney’s duty to protect client information. But they’re also a reminder of how much potentially relevant data you might be missing in a matter if you’re not aware that parties are generating it.

That is, if you haven’t been tracking email tracking information, you might want to start. Not just because tracking programs could be peeking into your confidential communications, but because those programs are creating massive amounts of data that could be relevant to future matters.

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