Is Email Tracking Legal and Safe? All Your Security Questions Answered

Before email tracking technology, email marketers would send emails and wait for a response, not even knowing whether recipients had opened and read them.

Email tracking changed all that! Now, you can track sent emails to know when recipients read them and click in-email links. And that helps you send more effective follow-ups.

However, an often-asked question is whether email tracking is legal and ethical. This article will answer any questions you may have regarding the legality of email tracking.

What Is Email Tracking?

Email tracking refers to monitoring how recipients interact with the emails they receive.

When your email lands in your recipient’s mailbox, what do they do with the email? Do they ignore the email or open it? If they open it, do they just read it without bothering to click your links, or do they click your links to reach your website?

Email tracking tells you:

• The recipients that open your email and how many times they open it.
• The recipients that click your email link and how many times they click the link.
• The recipients that download and view your attachments.
• When recipients open your email, click your link or view your attachment.

Tracking information equips you to send more effective follow-up emails. You’ll no longer shoot follow-ups blindly. Rather, you’ll send targeted follow-ups based on the recipients’ interests. 

For example, the follow-up message to an interested contact who read your email and clicked through to your landing page should differ from a follow-up to someone who didn’t open the email.

By providing you with information like open rates and click-through rates, email tracking also helps you measure the success of your email campaigns.

Email tracking data also helps you improve your emails. For example, low open rates tell you to improve your subject line, and low click-through rates tell you to improve your CTAs.

Email Tracking vs. Read Receipts

Email tracking operates invisibly to the recipient and provides comprehensive data on recipient behavior (including email reads and link clicks). However, read receipts involve explicit acknowledgment from the recipient about reading an email, thus offering greater transparency for both sides.

Read receipts only tell senders that recipients have read an email though. So, unlike email tracking, which provides comprehensive data on recipient behavior, read receipts provide senders with less detailed analytics.

Thus, requesting read receipts may serve you well if you’re only interested in knowing if recipients read your emails and if your recipients won’t mind the extra clicks to consent to send you the confirmation.

But email tracking will serve you better if you want to track more than email opens and do not want to “stress” recipients while at it. With email tracking, the recipients do not have to do anything for you to receive tracking information.

How Email Tracking Works

There are different email tracking methods, depending on the recipient interaction you want to track.

However, at the core of all email tracking methods is a tracker embedded in the email. This can be tracking pixels (when tracking email opens) or tracking codes (when tracking link clicks). 

When recipients interact with the email, the tracker sends data to the sender’s server, providing information about the recipient’s interaction with the email. 

Let’s examine how the different trackers work:

Web Beacons/Pixel Tracking

Web beacons (also called pixel tags) are used to track email opens. Since email opens are the most tracked email activity, pixel tracking is at the core of most email tracking. 

Pixel tracking involves embedding a tiny image into the body of the email. The image is usually 1×1 pixel in size and transparent, making it invisible to the recipient. 

Specifically, pixel tracking works as follows:

• The sender embeds an invisible image in the email.
• When your recipient opens the email, their email client tries to load all images in the email (including the tracking pixel).
• When loading the tracking pixel, the recipient’s email server requests the image file from the sender’s server where it is hosted.
• Once the sender’s server receives the request, it logs the event (the email open event), along with associated user data (such as the time of email open and the user’s IP address).

URL Wrapping

URL wrapping is used to track link clicks, making it another popular email tracking method.

URL wrapping works as follows:

• The sender’s email tracking solution modifies the links in the email by adding tracking parameters.
• When the recipient clicks on the link, they are briefly sent to the tracking server before being redirected to the intended web address.
• The tracking server uses every redirect to record link click events, along with associated user data (such as time of the click, user’s IP address, and even the user’s device).

Server Responses

When an email is sent, email servers exchange metadata when delivering the message from the sender to the recipient’s mailbox. This metadata usually contains various details about the email and its journey, and that can be used for email tracking purposes. 

For example, metadata exchanged by email servers when emails are sent includes delivery status notifications (DNS). Email tracking systems can use these notifications to monitor an email’s delivery progress. They expressly tell whether an email was successfully delivered, delayed, or failed outright.

Some metadata includes timestamps. These not only provide information about delivery status but also indicate when the email was sent, received, and delivered.

Are Email Trackers Legal?

Email tracking is legal in most countries, although some places  have privacy and related laws that email tracking is subject to. The legality of email tracking usually depends on compliance with these laws.

In some jurisdictions, email tracking is legal when used for legitimate purposes such as marketing analytics, sales tracking, or security monitoring.

However, in other jurisdictions, senders need to comply with specific requirements (regarding consent, disclosure, and unsubscribe links, among others) for their email-tracking activity to be legal.

Email Tracking Regulations You Need to Know

The regulations governing email tracking differ from jurisdiction to jurisdiction. Some of the main ones (those affecting the US, EU, and Canada) are:

The Electronic Communications Privacy Act (US)

The Electronic Communications Privacy Act (ECPA) is a 1986 US federal law that addresses privacy concerns related to electronic communications.

Email tracking is considered legal under the ECPA. However, the law has parts concerning the protection of electronic communication content, which includes metadata associated with emails, such as routing information. 

Thus, while the ECPA does not make email tracking illegal, you need to ensure that the metadata from email tracking is well-protected, as unauthorized access to this metadata could potentially violate the ECPA.

The CAN-SPAM Act (US)

The CAN-SPAM Act is a US federal law enacted in 2003 to regulate commercial emails.

Email tracking is generally considered legal under the CAN-SPAM Act. However, the law establishes requirements for the content and behavior of commercial emails. Thus, while the law does not make email tracking illegal, email tracking activities have to comply with specific provisions of the law to be considered legal. These include:

• Subject lines must not be deceptive but accurately reflect the content of the email.
• Emails must include a valid physical postal address of the sender.
• Emails must have an opt-out mechanism, and opt-out requests must be processed within ten business days of receiving them.

The General Data Protection Regulation (EU)

The General Data Protection Regulation (GDPR) is a data protection law enacted by the European Union in 2018 to protect the personal data of individuals within the EU. 

The GDPR does not explicitly make email tracking illegal. However, it regulates the processing of personal data, including data collected from email tracking activities.

Under the GDPR, email tracking is legal if organizations conducting it:

• Have a lawful basis for processing personal data (which often requires explicit consent).
• Provide clear information to individuals about the purpose of processing their personal data.
• Collect and process only personal data necessary for the intended email tracking purpose.
• Respect recipient’s rights, including the right to access their data and the right to restrict or object to the processing of their data.
• Implement appropriate measures to ensure the security of personal data collected through email tracking.

The CASL Law (Canada)

The CASL law is the Canadian Anti-Spam Legislation enacted in 2014 to regulate commercial electronic messages in order to combat spam.

CASL establishes rules for sending commercial electronic messages, including obtaining consent, providing identification information, and supporting unsubscribing, among others.

The law does not explicitly make email tracking illegal. However, organizations engaged in email tracking must:

• Collect express consent from recipients before sending them commercial messages.
• Provide contact information. 
• Include a clear and prominent unsubscribe mechanism and honor unsubscribe requests promptly.

Is Email Tracking Ethical?

When done correctly, email tracking can be both a legal and ethical way for a business to track users and understand how these individuals interact with its messages.

Conducting email tracking correctly involves many factors. Let’s examine how these factors can affect the ethics of email tracking:

Transparency

Even in jurisdictions like the US, where email tracking is generally legal and does not even require obtaining consent from the recipient, some people still view it as a violation of privacy, especially as recipients may not be aware that their interaction with the email is being monitored.

Being transparent about email tracking settles this and eases any ethical concerns that people may have about email tracking. That is, inform recipients upfront about using email tracking.

Amount of data collected

Email tracking can capture a lot of data about the recipient, including the user’s device, IP address, and exact location. This can make email tracking intrusive, as not many individuals will want email senders to know that much about them, especially their exact location. 

Minimizing the data collected from email tracking eases these concerns. Ensure you collect only the data necessary for your intended tracking purpose. For example, collecting data about users’ devices or locations is unnecessary if you want to track email opens and link clicks.

Purpose for tracking

Generally, people will have fewer issues with your activities if the activity brings them value. Ensure that email tracking provides value to recipients.

Don’t track emails for the sake of it. Instead, to glean insights for sending more impactful emails and ultimately enhance the recipients’ experience.

Respecting recipients’ rights

Even when you show that your email tracking activities are respectful of privacy expectations and compliant with relevant laws, some individuals will still not want you to track emails you send them.

If individuals opt out of email tracking, continuing to track emails you send them will be unethical. You should promptly respect the wishes of these individuals and send them untracked emails.

What to Remember When Tracking Emails

To ensure you do not fall on the wrong side of the law when tracking emails, always remember the following tips:

Get Consent from the Recipient

Consent is a fundamental principle of data protection laws, such as the GDPR (in the EU) and CASL (in Canada). Tracking emails sent to individuals in these territories without obtaining their explicit consent can expose you to legal repercussions.

So, if your email audience includes people in such territories, ensure you obtain valid consent before sending them emails. Also, ensure they are aware of and consent to your tracking activity.

Be Transparent That You’re Tracking Emails

Even when the law does not require obtaining explicit consent, be transparent about your email tracking activity. Transparency builds trust and sets the stage for a positive relationship with recipients. 

Clearly communicate that you track certain activities, such as opens and link clicks. Tell recipients you’re tracking specific data, tracked and how they can opt-out if they choose.

Make It Easy to Revoke Consent

Just as recipients may wish not to receive emails from you any longer, they may wish not to be tracked any longer.

If recipients change their minds, make it easy for them to opt out of email monitoring. Include clear instructions about how to opt-out. Importantly, respect recipients’ wishes to revoke their consent and stop tracking their emails immediately. 

Only Ask for Information You Need from Recipients

Remember that email tracking can become intrusive when you capture too much information about recipients. So, embrace data minimization when tracking emails and collect only the data you absolutely need. 

Collecting only necessary information not only enhances trust with recipients but also minimizes the risk of privacy violations. 

Most Importantly, Never Assume Consent

Never assume that consent can be implied. When data protection laws require obtaining consent, seek explicit consent from the recipients.

Silence or inaction does not count as valid consent. Your recipients should agree clearly and unambiguously that you should send them tracked emails.

Takeaway: Safely Track Emails with Mailsuite

Email tracking helps you know when recipients open your email, click its link, and more, providing insight to craft more effective follow-ups.

Understandably, many people worry about the legality of email tracking. But the good news is that email tracking is legal in most countries, including the US. It is legal and ethical if you comply with relevant data protection laws.

The best way to ensure you comply with these laws is by using a trustworthy email extension like Mailsuite. It does the heavy lifting for you by automatically including unsubscribe links and tracking email activity ethically. By using Mailsuite, your emails will not only be compliant, but the tracking insights you gain will propel your business to sustainable growth! 

Get Mailsuite today to start optimizing your email marketing campaigns!

FAQs

Here are the answers to some frequently asked questions about email tracking: 

Should I use email tracking?

Email tracking offers many benefits. It helps email marketers assess the effectiveness of email campaigns, create more impactful follow-up emails, and improve the quality of emails for future campaigns. So, you should use email tracking if you want to reap these benefits.

How should recipients be informed about email tracking?

When informing recipients about email tracking, the information should be clear and easily understandable. One popular way businesses do this is to provide information about email tracking in their privacy policy or terms of service. 

However, an explicit disclosure in emails is a more transparent way to inform recipients about email tracking. You can add a clear statement in your emails informing recipients or you can include a link to a separate page that explains your tracking practices in detail.

Do I have to get consent for email tracking?

Whether you need consent for email tracking depends on the applicable laws and regulations. The GDPR and CASL require consent to process personal data, for example, so you need consent for email tracking when sending messages to individuals in the European Union or Canada.

Are pre-checked boxes acceptable as consent to track emails?

Pre-checked boxes are not acceptable as a form of consent to track emails, particularly under stringent data protection regulations like the GDPR.  

This is because the GDPR requires explicit consent, which means consent must be given through clear affirmative action. However, pre-checked boxes do not require recipients to take any action to indicate their consent. Instead, consent is assumed unless the recipient unchecks the box to opt-out.

Do I need to allow opt-outs for email tracking?

Yes, you should allow opt-outs when tracking emails. In some jurisdictions, supporting opt-outs is required by law. For example, the GDPR in the EU and CASL in Canada require organizations to allow recipients to opt out of receiving tracked emails. But even when it is not required by law, allowing recipients to opt out of email tracking is considered best practice.