Recording Law for Recording at Home in Delaware

Delaware has no simple "home safe harbor" for recording. The state’s privacy law treats recordings made inside a private home differently depending on which chapter of the Delaware Code applies and whether the recorder is a participant in the conversation. Delaware’s wiretap chapter (Title 11, Chapter 24) permits interception of a communication where the person is a party to the communication or where one of the parties has given prior consent, unless done to commit a crime or tort. However, Delaware’s general privacy statute (Title 11, Chapter 5, Subchapter VII) requires the consent of all parties to intercept a "message by telephone, telegraph, letter or other means of communicating privately, including private conversation." These two regimes overlap but are not fully reconciled, creating a hybrid consent rule. If you are recording your own words or a conversation you are part of, Delaware’s one-party consent rule under Chapter 24 may permit it. But if you are recording others who are not part of the conversation or who have not consented, you may violate Chapter 5’s all-party consent requirement. Delaware does not treat your home as a safe harbor for recording others without their consent; a co-occupant or guest retains an independent privacy interest under the statute.

Delaware defines a "private place" in 11 Del. C. § 1337 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. A private home fits this definition. So does a private office, a hotel room, or any other space where people are not openly accessible to the general public. Under 11 Del. C. § 1335(a)(2)-(3), it is illegal to install or use a device to observe, photograph, record, amplify, or broadcast sounds or events inside a private place without the consent of the person entitled to privacy there. The statute’s text does not hinge on whether the device is worn by someone present; it bars installation or use of the device without consent. Separately, 11 Del. C. § 1335(a)(4) bars intercepting a "message by telephone, telegraph, letter or other means of communicating privately, including private conversation" without the consent of all parties. The scope of "private conversation" under §1335(a)(4) is not defined in the statute, and Delaware courts have not clarified its boundary. Delaware courts have not defined where the "private conversation" boundary of §1335(a)(4) falls within otherwise-public locations, so any conversation not plainly occurring in a public place should be treated conservatively as requiring all-party consent. For conversations that do qualify as "oral communication" under Chapter 24, Delaware applies a Katz-style two-part reasonable-expectation-of-privacy gate: 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.

If you are actively participating in a conversation inside your own home, Delaware’s one-party consent rule under 11 Del. C. § 2402(c)(4) allows you to record it. This is because you are a party to the communication and the statute permits interception where the person is a party to the communication or where one of the parties has given prior consent, absent a criminal or tortious purpose. However, this rule does not authorize recording others who are not part of the conversation or who have not consented. If you are recording someone else’s conversation without their consent, you may violate Delaware’s all-party consent rule under 11 Del. C. § 1335(a)(4). Delaware does not treat your home as a safe harbor for recording others without their consent; a co-occupant or guest retains an independent privacy interest under the statute.

Recording inside someone else’s home is the riskiest scenario under Delaware law because it implicates two overlapping provisions. First, 11 Del. C. § 1335(a)(2)-(3) bars installing or using a device to observe or record inside a private place without the consent of the person entitled to privacy there. Second, 11 Del. C. § 1335(a)(4) bars intercepting a "message by telephone, telegraph, letter or other means of communicating privately, including private conversation" without the consent of all parties. So if you are a guest in someone else’s home and record a conversation without the consent of everyone present, you likely violate the law. Being the homeowner satisfies consent only for yourself; a co-occupant or guest retains an independent privacy interest under the statute. The only clear exception is a narrow rule allowing a parent to record their own minor child inside the family home under §1335(a)(6), but this does not apply to general recordings. Delaware does not treat your presence as consent for others, and the interaction between Chapter 24’s one-party rule and Chapter 5’s private-place restrictions is not clearly resolved.

Delaware’s wiretapping law, found in Title 11, Chapter 24, focuses on audio and electronic communications and is essentially inapplicable to silent video-only recording. However, Delaware’s privacy statute covers video-only recording inside a private place. Under 11 Del. C. § 1335(a)(2)-(3), it is illegal to install or use a device to observe, photograph, record, amplify, or broadcast events inside a private place without the consent of the person entitled to privacy there. This applies even if the device does not capture audio. So filming someone inside a private home without their consent can violate Delaware law, regardless of whether sound is recorded. The law treats video-only recording inside a private space as seriously as audio recording. For video-only capture in public places, the device-installation provisions of §1335(a)(1)-(3) do not apply because such places are excluded from the definition of "private place" under §1337, and the harder question of whether a conversation is "private" under §1335(a)(4) does not arise when no conversation is captured.

Delaware has no statute directly authorizing or restricting a private citizen's recording of on-duty police in public. The controlling authority is the U.S. Court of Appeals for the Third Circuit’s decision in 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 or challenging purpose. 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.

Imagine you are visiting a friend’s home and a heated argument breaks out between your friend and their roommate. You decide to record the argument using your phone. Under Delaware law, this is risky. If you are an active participant in the conversation, you may record it under the one-party consent rule in 11 Del. C. § 2402(c)(4), which permits interception where the person is a party to the communication or where one of the parties has given prior consent, absent a criminal or tortious purpose. But if you are not part of the argument and simply record the roommate’s words without their consent, you may violate Delaware’s all-party consent rule under 11 Del. C. § 1335(a)(4). Delaware does not treat your presence as consent for others, and the interaction between Chapter 24’s one-party rule and Chapter 5’s private-place restrictions is not clearly resolved. If you install or use a device to observe or record inside the private home without the consent of the person entitled to privacy there, you may also violate §1335(a)(2)-(3). This scenario highlights why Delaware treats home recordings as high-risk.

Not all areas inside a home are treated as "private places" under Delaware law. Delaware’s definition of a "private place" in 11 Del. C. § 1337 excludes spaces to which the public or a substantial group thereof has access. So if a home has a common area that is openly accessible to guests or visitors (e.g., a living room used for gatherings, a kitchen during a party, or a front porch), that area may not qualify as a "private place" under the statute. However, the harder question is whether a conversation occurring in such a space is a "private conversation" under 11 Del. C. § 1335(a)(4), which is not defined in the statute and has not been clarified by Delaware courts. Practically, if participants are exhibiting behavior suggesting an intent to keep the exchange private—lowered voices, physical separation from others, moving to an isolated or enclosed area within the public space, or a request that others step back or not listen—treat the conversation as requiring all-party consent even in a nominally public area. Delaware courts have not defined where the "private conversation" boundary falls within otherwise-public locations, so any cue of privacy-seeking behavior should defeat the public-space default.