Recording Law for Phone & Video Calls in Delaware

Delaware has two different laws that apply to recording communications, and they don’t agree. One law (11 Del. C. §2402(c)(4)) says you can record a phone or electronic communication if you’re part of the conversation — even if the other person doesn’t know. Another law (11 Del. C. §1335(a)(4)) says you can’t record a "message by telephone, telegraph, letter or other means of communicating privately, including private conversation" without everyone’s consent. These laws overlap, so Delaware effectively has a hybrid rule: if the communication is clearly not private, the one-party rule applies; if it could be seen as a private conversation, you should get everyone’s consent. Delaware courts have not defined that boundary in a reported case, so the safer approach is to assume the stricter all-party rule applies unless the conversation is plainly public-facing.

Delaware’s wiretapping law (11 Del. C. §2401(13)) defines an "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." That means if someone is speaking in a way that exhibits an expectation of non-interception and under circumstances justifying such expectation, it’s likely a private conversation under Delaware law. The state’s other privacy law (11 Del. C. §1335(a)(4)) bars intercepting "a message by telephone, telegraph, letter or other means of communicating privately, including private conversation" without all-party consent. The problem is that Delaware courts haven’t defined what makes a conversation "private" in substance, not just by location. So if the call could be seen as private in tone or setting, treat it as requiring everyone’s consent.

Delaware’s privacy law (11 Del. C. §1335(a)(2)-(3)) makes it illegal to install or use a recording device inside a "private place" — like someone else’s home — without the consent of the person entitled to privacy there. This applies even if you’re a participant in the conversation, and the one-party rule under the wiretapping statute does not clearly override this private-place restriction. The law doesn’t create a safe harbor just because you’re in your own home or because you’re the one wearing the device. If you’re recording inside another person’s house, garage, or private office, you need everyone present to consent, or you risk breaking the law. Delaware’s definition of "private place" excludes areas with public or substantial-group access, so a home’s interior is squarely covered.

Silent video recording is treated differently depending on where it happens. If you’re filming in a public place — like a street or park — it’s generally allowed because Delaware’s privacy law only restricts recording in "private places" (11 Del. C. §1337). But if you’re filming inside someone’s home or a private office without consent, it’s illegal under 11 Del. C. §1335(a)(2)-(3), even without audio. For phone or electronic communications, the wiretapping law doesn’t apply to silent video-only capture because it’s built around spoken communication, but the all-party consent rule for private conversations still could. So if you’re silently recording a phone or video call, assume you need everyone’s okay unless the call is clearly not private.

Delaware has no state law that directly addresses recording police officers in public. But federal courts covering Delaware (the Third Circuit, which includes Pennsylvania and New Jersey) have ruled that the First Amendment protects the right to record on-duty police officers performing their duties in public. In Fields v. City of Philadelphia, the court held that openly recording police in public is protected, regardless of whether the officer claims it’s interfering. This means that if you’re openly recording an interaction on a public street or sidewalk, it’s protected speech and not a violation of Delaware’s wiretapping or privacy laws.

Delaware’s Personal Data Privacy Act (DPDPA), effective January 1, 2025, treats biometric data as "sensitive data" that generally cannot be processed without the consumer’s consent. Under 6 Del. C. §12D-102(3), "biometric data" means data generated by automatic measurements of an individual's unique biological characteristics, such as a fingerprint, a voiceprint, eye retinas, irises, or other unique biological patterns or characteristics that are used to identify a specific individual — expressly EXCLUDING a digital or physical photograph, an audio or video recording, and data generated from such a recording UNLESS that data is generated to identify a specific individual. The law requires "clear affirmative act" consent that is opt-in and not satisfied by broad terms-of-service acceptance (6 Del. C. §12D-102(7)). The DPDPA applies to controllers processing 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 (6 Del. C. §12D-103(a)), subject to a pending amendment (HB 380, passed both chambers June 16, 2026 but not yet signed) that would lower the threshold to 15,000 consumers. Enforcement is by the Delaware Department of Justice with a 60-day cure period through December 31, 2025, and discretionary cure thereafter; civil penalties can reach up to $10,000 per violation for willful violations (6 Del. C. §2522(b)-(c), cross-referenced in 6 Del. C. §12D-111(e)). The DPDPA does not create a private right of action (6 Del. C. §12D-111(d)).

Imagine you’re on a phone call with a neighbor to discuss a property line disagreement. The call is quiet, both of you are alone, and the topic is sensitive. Under Delaware’s laws, this could be considered a private conversation. Even though you’re part of the call, the stricter all-party consent rule likely applies because the conversation isn’t public-facing. If you record the call without telling the neighbor, you risk violating 11 Del. C. §1335(a)(4). A safer approach would be to ask for consent before recording, or assume you need it unless the call is clearly not private.

Delaware’s privacy law (11 Del. C. §1335(a)(2)-(3)) bars installing or using a device for observing, photographing, or recording events inside a "private place" without the consent of the person(s) entitled to privacy there — and this applies to purely visual/video devices, with no audio required. The statute’s definition of "private place" excludes places with public or substantial-group access, so a home’s interior is squarely covered. 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). 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.