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Delaware

Reporter's Recording Guide

Last updated October 2019

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Summary

Delaware’s wiretapping law requires at least one party’s consent to record both in-person conversations and electronic communications. However, there is some conflict in the laws. A more recently enacted state privacy law makes it illegal to intercept private conversations without the consent of all parties. Del. Code Ann. tit. 11, § 1335(a)(4). At least one federal court has held that, even under the privacy law, an individual can record conversations to which he or she is a party, without obtaining consent from others. United States v. Vespe, 389 F. Supp. 1359 (1975). Both laws have criminal penalties, though, so it is advisable to follow the stricter privacy law.

Violations of the wiretapping law are felonies and may also be the basis of a civil lawsuit, while violations of the privacy law are generally misdemeanors.

Violations of the hidden camera provisions are felonies.

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In-person conversations

There is a conflict in the state’s laws on recording private communications, so it is advisable to follow the stricter law and obtain consent first from all parties.

The state’s privacy law requires the consent of all parties to overhear or record a private communication, though at least one federal court has held that a party can record his or her own conversation without permission of the other parties. Del. Code Ann. tit. 11, § 1335(a)(4); see United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975).

The state’s wiretapping law, however, permits an individual to record oral conversations where either the person is a party to the conversation or at least one of the participants has consented to the recording, so long as the recording or interception is not done for the purpose of committing a criminal or tortious act. Del. Code Ann. tit. 11, § 2402(c)(4).

Under either law, there is no need to obtain consent to record conversations held in public places, where there is no reasonable expectation of privacy. Del. Code Ann. tit. 11, § 1335(a)(4); § 2401(13).

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Telephone and electronic communications

There is a conflict in the state’s laws on recording phone calls, so it is advisable to follow the stricter law and obtain consent first from all parties.

The state’s privacy law requires the consent of all parties to intercept a telephone conversation or other private communications, though at least one federal court has held that one party can record her own conversation without permission of the other parties. Del. Code Ann. tit. 11, § 1335(a)(4); see United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975).

The state’s wiretapping law, however, says it is “lawful” to record or intercept any electronic communication such as a telephone call with the consent of at least one party to the conversation. Del. Code Ann. tit. 11, § 2402(c)(4). And because the provision of the wiretapping statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence” of any nature, consent of at least one party is required to disclose the contents of text or email messages sent between wireless devices. Del. Code Ann. tit. 11, § 2401(5).

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Hidden cameras

The state’s privacy statute prohibits installing a camera or other recording device “in any private place, without consent of the person or persons entitled to privacy there.” Del. Code Ann. tit. 11, § 1335(a)(2).

The law also bars the use of hidden cameras to record individuals dressing or undressing in a private place. Del. Code Ann. tit. 11, § 1335(a)(6).

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Criminal penalties

Violations of the wiretapping statute—which requires one party’s consent for recording or disclosing any private communication—are felonies punishable by up to five years in prison and a fine of up to $10,000. Del. Code Ann. tit. 11, § 2402(b).

Violations of the privacy law—which requires consent of all parties to intercept or record private communications and prohibits the installation of a hidden recording device in a private place—are generally misdemeanors punishable by up to one year in jail and fines of up to $2,300. Del. Code Ann. tit. 11, § 4206(a).

The provision barring the taking of photo images of individuals undressing in a private place is a felony punishable by up to two years in prison. Del. Code Ann. tit. 11, § 4205(a).

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Civil suits

Any person whose communications are illegally recorded, intercepted, disclosed or used in violation of the state’s wiretapping law may bring a suit to recover for both actual and punitive damages of not less than $1,000, as well as attorney’s fees and litigation costs. Del. Code Ann. tit. 11, § 2409(a). However, good faith reliance on a court order or legislative authorization constitutes a complete defense.

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Disclosing recordings

The state prohibits the disclosure or use of any intercepted or illegally recorded in-person, telephone or electronic communication if that person knows or has reason to know the information was obtained in violation of the state’s wiretapping and eavesdropping statutes. Del. Code Ann. tit. 11, § 2402(a).

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