Is It Legal to Record a Conversation in Delaware?

Statute · Penalty: mixed

11 Del. C. § 1335 (Violation of privacy; Title 11, Ch. 5, Subch. VII) — general privacy/eavesdropping statute requiring "consent of all parties" to intercept a private message/conversation, 11 Del. C. § 1337 (definitions, incl. "private place"), together with 11 Del. C. §§ 2401, 2402, 2409 (Title 11, Ch. 24, Subch. I — Wiretapping, Electronic Surveillance and Interception of Communications), which separately permits interception "where the person is a party to the communication or where one of the parties... has given prior consent" (one-party consent, §2402(c)(4)), unless done to commit a crime or tort, and provides a civil damages remedy at §2409.

In-person vs. phone & video calls

The statutes do not draw an in-person vs. phone/electronic distinction based on the medium. Both chapters cover "wire," "oral," and "electronic" communications together (11 Del. C. §2401 definitions) and 11 Del. C. §1335(a)(4) covers "a message by telephone, telegraph, letter or other means of communicating privately, including private conversation" in the same clause — i.e., in-person "private conversation" is treated identically to phone/wire calls for consent purposes. There is no relaxed rule for in-person recording vs. phone recording.

Recording in public

11 Del. C. §1337 (definitions for this subchapter, which includes §1335) defines "private place" as "a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access." This expressly carves public places OUT of the device-installation/surveillance provisions of §1335(a)(1)-(3) (trespass-to-eavesdrop, hidden device installation, external listening device aimed at a private place). So recording of disputes/interactions occurring in genuinely public places (streets, sidewalks, public building lobbies, a traffic stop on a public road, etc.) generally falls outside those three subsections. The harder question is §1335(a)(4)'s bar on intercepting a "message... including private conversation" without all-party consent — this turns on whether the conversation itself is "private" in substance, not merely on physical location, and Delaware courts have not defined that boundary in a reported case. The most relevant primary authority is United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975), a federal district court decision interpreting 11 Del. C. §1335 as consistent with a one-party-consent rule where the recorder is a participant in the conversation — i.e., a party recording their own conversation (Vespe involved recorded interstate telephone calls between Remedio, Shaffer, and Vespe in an interstate-extortion prosecution) does not violate the statute. Vespe is persuasive but not a Delaware Supreme Court holding, so it does not conclusively resolve the statutory conflict for a bystander recording others' conversation.

Recording at home

No general carve-out exists making one's own home a safe harbor for recording others without consent. 11 Del. C. §1335(a)(2)-(3) actually impose extra restrictions on recording inside a "private place" (installing a recording/observation device there without consent of the person(s) entitled to privacy there, or aiming a listening device at a private place from outside). Being the homeowner satisfies "consent" only for yourself; a co-occupant or guest who is not consulted retains an independent privacy interest under the statute's text. The one specific home-related carve-out in §1335 is narrow and unrelated to general A/V evidence-gathering: §1335(a)(6) exempts a parent/guardian recording their own minor child (under 18) inside the family dwelling, unless done for sexual gratification — this is part of the "intimate/undress" recording provision, not a general home-recording rule. For the wearable-device use case, recording inside someone else's home (e.g., during a dispute at another person's residence) is the highest-risk scenario under Delaware law because it squarely implicates the "private place" device-installation/use language in §1335(a)(2)-(3), which is not clearly resolved by the one-party-consent language in Chapter 24.

Recording the police

Delaware has no statute directly authorizing or restricting a private citizen's recording of on-duty police in public. 11 Del. C. §1335(b)(5) is not such an exception — it exempts "acts done by police officers as provided in §§ 1336 [repealed] and 1431," meaning it excuses law enforcement's own authorized surveillance/wiretap activity, not a citizen's right to film officers. Delaware sits within the U.S. Court of Appeals for the Third Circuit (with Pennsylvania, New Jersey, and the Virgin Islands). The controlling circuit precedent is Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017), which held that the First Amendment protects the right of members of the public to photograph, film, and audio-record police officers carrying out their official duties in public, regardless of whether the recording is made with an expressed critical/challenging purpose. (Fields also held the individual officer defendants had qualified immunity because the right was not yet "clearly established" at the time of that 2012-13 incident; post-2017, within the Third Circuit the right itself is clearly established going forward.) Because on-duty police interactions occur in public and officers acting in an official public capacity are generally held to lack a reasonable expectation of privacy in that public interaction, such recording (audio and video) is unlikely to be treated as interception of a "private conversation" under §1335(a)(4) or as protected "oral communication" under 11 Del. C. §2401(13) (which requires the speaker to exhibit "an expectation that such communication is not subject to interception"). No Delaware state case squarely addresses this scenario, so this conclusion rests on the statutory text plus Third Circuit First Amendment precedent rather than a Delaware police-recording case directly on point.

Video-only capture (no audio)

Silent video-only recording is treated differently depending on which chapter applies, and Delaware's wiretap chapter (Ch. 24) is essentially inapplicable to it. Chapter 24's definitions of "oral communication" (§2401(13)), "wire communication" (§2401(20)), and "electronic communication" (§2401(5)) are built around spoken/transmitted communications, not silent visual capture of events — so filming a physical altercation or a person's conduct without capturing an "oral communication" generally does not trigger Chapter 24's one-party-consent interception provisions at all (there is no "communication" being intercepted). §1335 is the provision that does reach video-only conduct: subsection (a)(2) separately bars installing, in a "private place," any device "for observing, photographing, recording, amplifying or broadcasting sounds or events" without consent of the person(s) entitled to privacy there — this applies to a purely visual/video device, no audio required. However, per the §1337 definition, this only applies to a "private place" (excludes places with public/substantial-group access), so silent video recording of events unfolding in public places (streets, public police stops, most dispute locations outside a home) is not restricted by §1335(a)(2)-(3) either. Net effect: video-only capture of a public incident is the lowest-risk activity under Delaware's statutes; video-only capture inside a private space (someone's home, a private office, a fitting room, etc.) without the consent of the person entitled to privacy there is the higher-risk activity and can independently violate §1335(a)(2)-(3) as a Class A misdemeanor even with no audio at all.

What counts as a “private” conversation →

Delaware runs two distinct, only partially-reconciled tests depending on which statute applies. (A) Chapter 24 (one-party consent statute) has an explicit, codified reasonable-expectation-of-privacy gate built into the definition of the regulated category itself: 11 Del. C. §2401(13) defines "oral communication" as "any oral communication uttered by a person made while exhibiting an expectation that such communication is not subject to interception and under circumstances justifying such expectation, but such term does not include any electronic communication" -- a Katz-style two-part (subjective expectation + objectively-justifying-circumstances) test, independently confirmed verbatim against the official Delaware Code. If a spoken exchange doesn't clear it, it isn't "oral communication," and Chapter 24's one-party consent rule (§2402(c)(4): interception is lawful "where the person is a party to the communication or where one of the parties to the communication has given prior consent," absent a criminal/tortious purpose) doesn't reach it at all. (B) Chapter 5, §1335(a)(4) (the all-party consent statute) provides, verbatim (confirmed in full against the official Code): "Intercepts without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation." This clause has no statutory definition of "private conversation" or "communicating privately" anywhere in the subchapter -- confirmed directly: §1337, the subchapter's sole definitions section, defines only two terms, "private place" and "public place," and neither "private conversation" nor "communicating privately" appears among them. Independently confirmed textually that §1335(a)(1), (a)(2), and (a)(3) each use the phrase "private place" (making §1337's definition directly operative there), while (a)(4)'s text does not contain that phrase at all -- so §1337 has no textual purchase on (a)(4)'s undefined "private conversation"/"communicating privately" language. No Delaware state appellate/Supreme Court case fills this gap. United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975) (D. Del., Crim. A. 74-71, Judge Latchum) is a real, correctly cited case -- confirmed via independent case-database lookup as a federal extortion/conspiracy prosecution (18 U.S.C. §1952(a)(3), §371) -- but it addresses the participant/one-party recording question, not what makes an in-person conversation "private" in the first place under §1335(a)(4); it should not be overread as resolving that gap. RCFP's secondary gloss ("[u]nder either law, there is no need to obtain consent to record conversations held in public places, where there is no reasonable expectation of privacy") was independently confirmed on the cited page and is consistent with, but not a substitute for, a Delaware-specific holding construing (a)(4). Delaware runs two parallel, imperfectly reconciled gates: under Chapter 24, a spoken exchange must first satisfy §2401(13)'s explicit expectation-of-non-interception test to count as protected "oral communication," and once it does, only one participant's consent is required (one-party rule, §2402(c)(4)); but under Chapter 5, §1335(a)(4) separately requires all parties' consent to intercept a "private conversation" using an undefined threshold Delaware courts have never delineated, so the conservative reading -- the appropriate one for a live default-behavior product -- is that any conversation not plainly occurring in a "public place" (per §1337's public/substantial-group-access carve-out, which textually reaches only (a)(1)-(3) but is the only judicially-anchored proxy available for (a)(4)'s undefined term) should be treated as requiring all-party consent regardless of what Chapter 24 alone would permit. One-party consent can be safely relied on only for conversations that could not plausibly also be characterized as a "private conversation" under the stricter, unresolved §1335(a)(4) standard. This is consistent with, and does not change, the existing row's "hybrid" consent_type classification -- it is the same underlying statutory tension the existing row's public_place_exception_notes already describes, expressed with additional primary-source textual support (confirming §1337 defines only "private place"/"public place," and confirming which subsections of §1335(a) actually contain the phrase "private place").

Biometric / voiceprint law →

Delaware Personal Data Privacy Act (DPDPA) — comprehensive consumer privacy law with a biometric-data-as-"sensitive data" provision. NOT a dedicated BIPA-style statute. (A standalone biometric/geolocation privacy bill, HB 350, "AN ACT TO AMEND TITLE 6 OF THE DELAWARE CODE RELATING TO PERSONAL INFORMATION PRIVACY," was introduced in the 149th General Assembly (2017-18) but died in committee — confirmed via official DE General Assembly bill tracker — and was never enacted. Delaware has no dedicated biometric statute today.) — CONFIRMED via direct primary-source fetch, with one clarifying addition. § 12D-102(3) defines "biometric data" to expressly include "voiceprint" as an example of a "unique biological characteristic... used to identify a specific individual" — quote verbatim-matched against the official Delaware Code. IMPORTANT NUANCE not fully surfaced in the original record: the same definition expressly EXCLUDES "a digital or physical photograph," "an audio or video recording," and "any data generated from a digital or physical photograph, or an audio or video recording, unless such data is generated to identify a specific individual." Practical effect for live.law: the raw audio stream captured by the glasses is NOT itself "biometric data" under the DPDPA — the consent duty is triggered specifically when that audio is processed into a voiceprint/template used to identify the wearer (or another person), not by mere audio capture/transmission. § 12D-102(30)(b) classifies "biometric data" as "sensitive data." § 12D-106(a)(4), quoted and confirmed verbatim: a controller must "[n]ot process sensitive data concerning a consumer without obtaining the consumer's consent, or, in the case of the processing of sensitive data concerning a known child, without first obtaining consent from the child's parent or lawful guardian and otherwise complying with § 1204C of this title" (the child-consent clause was omitted from the original quote but is immaterial for an adult-facing product). "Consent" under § 12D-102(7) is opt-in: "a clear affirmative act signifying a consumer's freely given, specific, informed and unambiguous agreement," excluding acceptance of broad ToS, hovering/muting/pausing, or dark patterns. Applicability is gated by § 12D-103(a)'s thresholds (≥35,000 DE consumers/yr, or ≥10,000 + >20% revenue from data sales — subject to HB 380's pending reduction to 15,000, not yet signed into law) — a small pilot may fall outside DPDPA's scope entirely. Confirmed: DPDPA text does not independently impose a BIPA-style published biometric-specific retention/destruction-schedule mandate; general data-minimization duties in § 12D-106(a)(1)-(2) may apply but were not the focus of this verification pass. No Delaware case law exists yet interpreting "processing" or the biometric-data/audio-recording boundary in this statute (effective Jan. 1, 2025) — this remains a genuine, unresolved legal-interpretation gap, not an oversight.

Attorney ethics (ABA Formal Op. 01-422) →

Independent verification confirms both the researcher's factual predicates and the classification. (1) DSBA ethics opinions: I fetched the DSBA's live Ethics Opinions Index page directly and had every listed opinion title/topic reviewed. No opinion addresses recording, taping, surveillance, or wiretapping by lawyers. The index runs 1978-2021 (with gaps in 2002, 2005, and 2012-2020; the most recent opinion listed is 2021-1), confirming the researcher's stated coverage gap. The only opinion a keyword search surfaced with superficial relevance, DSBA Ethics Op. 1999-2, was pulled and read in full — it concerns a lawyer whose spouse is a judge (Rule 3.5/8.4(e)-(f) and imputed disqualification), not recording. It is not on point, and the researcher correctly did not rely on it. (2) Georgetown Journal of Legal Ethics article: I fetched the actual PDF at the cited URL and read the relevant pages directly (not a summary). The article is real, and its content matches the researcher's quotations essentially verbatim: - Footnote 60 (p. 66): "The states with no announced position on secret recording are: Arkansas, Connecticut, Delaware, Georgia, [Hawaii — alphabetically implied, largely obscured in the scanned image but consistent with the stated total of 13 in Table 1], Louisiana, Nevada, New Jersey, North Dakota, Rhode Island, South Dakota, West Virginia, and Wyoming." Table 1 independently confirms "No stated opinion: 13 states." Delaware is unambiguously included. - Footnote 37 (p. 63): "Delaware has conflicting legal standards, but the more recent wiretapping law does not require all-party consent. See Del. Code Ann. tit. 11, § 2402 (West 2018). In these four states (Oregon, Nevada, Michigan, and Delaware), the issue of whether lawyers may secretly record is not entirely resolved as a question of criminal law." This exactly matches the researcher's paraphrase/quote. (3) Underlying statute check: I independently located Del. Code Ann. tit. 11, § 2402(c)(4) (Wiretapping, Electronic Surveillance and Interception of Communications Act, Title 11, Ch. 24, Subch. I — not Ch. 51 as originally cited) and confirmed it permits one-party consent ("For a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception..."). This corroborates the "conflicting legal standards" framing (Delaware has older case law read as requiring all-party consent, alongside a newer one-party-consent statute), though this criminal-law question is properly a separate row in this dataset from the ethics-opinion question addressed here. (4) No countervailing authority found: I attempted additional independent searches (DuckDuckGo, Google, direct fetches of the DSBA site and courts.delaware.gov/odc/) for any Delaware Supreme Court case, Board on Professional Responsibility decision, or post-2011 DSBA opinion on point. None surfaced. This is consistent with, not contradictory to, the researcher's conclusion — and neither the researcher nor I had access to a full Westlaw/Fastcase/Casetext search, so a truly obscure or unpublished authority cannot be 100% ruled out. Conclusion: The classification "no_direct_authority" is correct. Delaware has no ethics opinion or case addressing whether undisclosed lawyer recording violates Rule 8.4(c); ABA Formal Opinion 01-422 is persuasive-only guidance with no Delaware-specific adoption or rejection. The researcher did not overstate confidence — "medium" remains the right, honest level given the DSBA index's 2011 cutoff and the absence of full-text case-law-database access. One correction made to the underlying sourcing: the Delaware wiretap statute URL in the original sources array pointed to Title 11, Chapter 51 (Superior Court) — the wrong chapter. Section 2402 is actually in Title 11, Chapter 24 (Wiretapping, Electronic Surveillance and Interception of Communications). Corrected below.

Can you personally sue over a violation?

Yes — this state gives a private right of action, not just criminal/regulatory enforcement.

Can I record as a guest in someone else's home?

Delaware treats this cautiously: any home-recording leeway it gives is written for your own home, not one you're just visiting. As a guest, expect to need everyone's okay before recording, the same as anywhere else in the state.

What if I'm on a call with someone in another state?

Play it safe: if either state on the call requires everyone's okay to record, treat the whole call that way — don't assume Delaware's rule is the only one that matters just because you're the one wearing the glasses.

If it's legal to record, can it still be used against me later?

Usually, yes. Being legal to record and being protected from a future court case are two different questions — a legal recording can generally still be obtained by the other side later. Recording your own conversation with your own attorney is a separate, more protected situation, but almost everything else — a landlord, a police officer, a family member — isn't automatically off-limits to opposing counsel just because it was legal to capture.

This is a newer, less-settled corner of the law — our own research is still being refined here, so treat this as a starting point, not a final answer.