Recording Law for Police & Civil Rights in Delaware

In Delaware, members of the public have a First Amendment right to record police officers performing their official duties in public places. This protection comes from a decision of the U.S. Court of Appeals for the Third Circuit, which binds Delaware courts because the state is within the Third Circuit. In *Fields v. City of Philadelphia*, 862 F.3d 353 (3d Cir. 2017), the court 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 the speaker’s purpose. This means you can record traffic stops, arrests, or other public encounters with officers without asking permission, subject to lawful restrictions such as obstruction or trespass. However, this protection applies only when the officer is acting in an official capacity in a public space. Recording inside private homes or other private areas is treated differently and is not covered by this First Amendment rule.

Delaware’s wiretapping law, found in Title 11, Chapter 24, permits 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. This means if you are talking to an officer during a traffic stop or other encounter and you are part of the conversation, you can legally record the conversation without telling them, provided the conversation qualifies as an "oral communication" under the statute. The law 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." If an officer is speaking in a manner that suggests a reasonable expectation of non-interception—such as in a genuinely public setting where others can hear—it is less likely to count as a protected "oral communication."

Delaware also has a separate law, Title 11, Section 1335, that makes it illegal to intercept a "message by telephone, telegraph, letter or other means of communicating privately, including private conversation" without the consent of all parties. This law does not define what makes a conversation "private," and no Delaware court has resolved this boundary. Because of this, the safest approach is to assume that if a conversation could be considered private—such as if the officer is speaking quietly or away from others—you should get consent from everyone involved before recording. This is especially important because the law does not provide clear guidance on where the line is drawn between public and private conversations. The most relevant authority is *United States v. Vespe*, 389 F. Supp. 1359 (D. Del. 1975), a federal extortion prosecution in which the court addressed the participant/one-party recording question but did not define the "private conversation" threshold under §1335(a)(4).

Recording video without audio is generally the lowest-risk activity under Delaware law because the wiretapping chapter’s definitions of "oral communication," "wire communication," and "electronic communication" are built around spoken or transmitted communications, not silent visual capture. As long as you are recording in a public place—like a street or sidewalk—you are not violating the wiretapping chapter by filming officers or others without their consent. However, if you are inside a private home or other private space, recording video without consent can still violate another part of the law that bars installing, in a "private place," any device for observing, photographing, recording, amplifying or broadcasting events without consent of the person(s) entitled to privacy there. This applies to purely visual/video devices and does not require audio.

Delaware’s privacy law, Title 11, Section 1335, makes it illegal to intercept a message without the consent of all parties under §1335(a)(4) and also bars installing or using a device to observe or record events in a "private place" without the consent of the people who are entitled to privacy there under §1335(a)(2)-(3). A private place includes homes, private offices, or other areas where people have a reasonable expectation of privacy, and the statute expressly excludes places to which the public or a substantial group thereof has access. This means recording inside someone else’s home without consent is risky and could violate the law unless you have consent. The law does not make a general exception for your own home if other people are present who have not agreed to be recorded; being the homeowner satisfies "consent" only for yourself, and 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 is narrow and unrelated to general evidence-gathering: a parent or guardian may record their own minor child (under 18) inside the family dwelling, unless done for sexual gratification, pursuant to §1335(a)(6).

Imagine you are pulled over by a police officer on a public road. You start recording the interaction with your phone. The officer is speaking loudly enough that passersby could hear. Under the First Amendment, as interpreted by the Third Circuit in *Fields v. City of Philadelphia*, you are protected in recording the officer’s public-facing conduct. If you are speaking to the officer and recording the conversation, Delaware’s wiretapping law at §2402(c)(4) allows it because you are a party to the communication, provided the conversation qualifies as an "oral communication" under §2401(13). However, if the officer steps away from the public area and speaks quietly to a colleague in a manner suggesting a reasonable expectation of privacy, that part of the conversation might be considered private, and recording it without consent could violate the all-party consent rule in §1335(a)(4).

Delaware’s Personal Data Privacy Act (DPDPA), effective January 1, 2025, treats biometric data as "sensitive data" that may not 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, but 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." This means the raw audio stream captured by a wearable device is not itself "biometric data" under the DPDPA; the consent duty is triggered specifically when that audio is processed into a voiceprint or template used to identify the wearer (or another person), not by mere audio capture or transmission. 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 derived from the sale of personal data. Enforcement is exclusively by the Delaware Department of Justice, which may seek civil penalties of up to $10,000 per willful violation, along with injunctive relief and restitution. The DPDPA does not create a private right of action.

Delaware has no State Bar ethics opinion or Delaware court decision addressing whether a lawyer’s undisclosed recording of a conversation violates Delaware Rule of Professional Conduct 8.4(c). A leading 50-state survey classifies Delaware among the thirteen jurisdictions with "no announced position" on this question. Delaware’s wiretapping statute, Title 11, Chapter 24, permits one-party consent for interception where the person is a party to the communication, but this criminal-law rule does not resolve the separate ethics question. Because no Delaware authority squarely addresses the issue, lawyers should proceed with caution and consider obtaining informed consent before recording conversations involving clients or third parties.