Recording Law for Family Law in Delaware

Delaware has two overlapping laws that can both apply when you record a conversation. The first is Delaware’s wiretapping statute (Title 11, Chapter 24). It says you can record a conversation if you are part of it or if someone in the conversation has agreed to the recording. This is called one-party consent. The second law is Delaware’s privacy statute (Title 11, Chapter 5, Subchapter VII). It says you cannot intercept a “message by telephone, telegraph, letter or other means of communicating privately, including private conversation” without the consent of all parties. Delaware courts have not defined what makes a conversation “private” in substance, so the conflict between the two statutes means caution is warranted, especially in private settings. The wiretapping law is found at 11 Del. C. § 2402(c)(4), and the privacy law is at 11 Del. C. § 1335.

Delaware’s privacy law adds extra restrictions when you record inside a “private place,” which includes someone else’s home. Section 1335(a)(2) makes it illegal to install or use a recording device in a private place without the consent of the person entitled to privacy there. This applies even if you are a co-owner or a guest. 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 only narrow exception is for parents 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. No general carve-out exists making one’s own home a safe harbor for recording others without consent.

If you record only video without audio, Delaware’s wiretapping law is essentially inapplicable because its definitions of “oral communication,” “wire communication,” and “electronic communication” are built around spoken/transmitted communications, not silent visual capture of events. However, the privacy law still applies if you record video inside a private place. Section 1335(a)(2) bars installing a device to observe or record events in a private place without consent, even if the device does not capture sound. The definition of a “private place” is found at 11 Del. C. § 1337 and excludes places to which the public or a substantial group thereof has access.

Delaware does not have a law that specifically allows or forbids recording on-duty police officers in public. But federal courts, including the Third Circuit which covers Delaware, have ruled that the First Amendment protects your right to photograph, film, and audio-record police officers performing their official duties in public, regardless of the recorder’s purpose. This means you can generally record police interactions in public places, as long as you are not interfering with their work. However, if the interaction moves into a private space or the officers take steps to keep the conversation private, the legal analysis changes. This protection comes from the federal case Fields v. City of Philadelphia, decided by the Third Circuit in 2017.

If you record a conversation without the required consent, you could face serious consequences. Under Delaware’s privacy law, it is a crime to intercept a private conversation without consent, which can result in criminal charges. The law also allows the person you recorded to sue you for damages. The Delaware Personal Data Privacy Act (effective Jan. 1, 2025) does not provide a private right of action; enforcement is by the Delaware Department of Justice, with a 60-day cure period through Dec. 31, 2025 and discretionary cure opportunities thereafter. The civil damages provision is at 6 Del. C. § 2522(b)-(c) (cross-referenced by 6 Del. C. § 12D-111(e)), and the criminal penalties are outlined in 11 Del. C. § 1335.

Recording inside someone else’s home 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. The safer choice would be to ask for consent before recording, or to avoid recording altogether unless you have legal advice tailored to your situation.

Delaware’s Personal Data Privacy Act (DPDPA), effective Jan. 1, 2025, treats biometric data as “sensitive data” that generally cannot be processed without the consumer’s consent. The statute defines “biometric data” to include a voiceprint as an example of a unique biological characteristic used to identify a specific individual. However, the same definition expressly excludes raw audio or video recordings unless the data is generated therefrom to identify a specific individual. So, the mere capture of an audio stream is not itself “biometric data” under the DPDPA; the consent duty is triggered only when that audio is processed into a voiceprint or template used to identify the wearer (or another person). The DPDPA applies to controllers processing the personal data of at least 35,000 Delaware consumers per year, or at least 10,000 consumers with more than 20% of gross revenue from data sales. Enforcement is by the Delaware Department of Justice, with a 60-day cure period through Dec. 31, 2025 and discretionary cure opportunities thereafter. The statute is found at 6 Del. C. §§ 12D-101 to 12D-111.

Delaware’s privacy statute bars intercepting a “message by telephone, telegraph, letter or other means of communicating privately, including private conversation” without all-party consent. The statute does not define what makes a conversation “private” in substance, and Delaware courts have not filled this gap. The only judicially-anchored proxy available is the definition of “private place” at 11 Del. C. § 1337, which excludes places to which the public or a substantial group thereof has access. Because the statute’s text does not tie the “private conversation” threshold to physical location, conversations occurring in nominally public spaces may still be treated as private if participants exhibit behavior suggesting an intent to keep the exchange private. Until Delaware courts clarify this boundary, the conservative approach is to treat any conversation not plainly occurring in a genuinely public place as requiring all-party consent.