August 1, 2012

Summary of statute(s): Delaware’s wiretapping and surveillance laws require at least one party’s consent to record both in-person conversations and electronic communications. However, there is some conflict in the laws. A state privacy law makes it illegal to intercept private conversations without the consent of all parties. Del. Code Ann. tit. 11, § 1335(a)(4). The wiretapping law is much more recent, though, and at least one federal court has held that, even under the privacy law, an individual can record his own conversations. United States v. Vespe, 389 F. Supp. 1359 (1975).

In-person conversations: An individual can 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).

Electronic communications: Similarly, absent any criminal or tortious intent, a person is allowed 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 statute dealing with wireless communications applies to “any transfer of signs, signals, writing, images, sounds, data or intelligence” of any nature, consent likewise is required to disclose the contents of text or e-mail messages sent between wireless devices. Del. Code Ann. tit. 11, § 2401(a).

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(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), -(7).

Criminal penalties: Communications intercepted illegally, or the disclosure of the contents of illegally recorded communications is a felony punishable by up to five years in prison and a fine of up to $10,000. Del. Code Ann. tit. 11, § 2402(b). Installing a hidden recording device in any private place is a misdemeanor punishable by up to one year in jail and fines of up to $2,300. Del. Code Ann. tit. 11, § 4206. 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).

Civil suits: Any person whose communications are illegally intercepted, disclosed or used in violation of the state’s eavesdropping laws may bring a suit to recover for both actual and punitive damages, as well as attorney fees and litigation costs. Del. Code Ann. tit. 11, § 2409(a). However, a good faith reliance on a court order or legislative authorization constitutes a complete defense.

Disclosing recordings: The state prohibits the disclosure of any intercepted oral 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)(2).