Recording Law for Recording in Public in Delaware

Delaware has two separate laws that can apply when you record conversations or activity in public. The first, under Chapter 24 of the state code, allows one person in the conversation to record without telling the others. This is called a one-party consent rule. But the second law, under Chapter 5, requires everyone in a "private conversation" to agree before it can be recorded. The problem is that Delaware courts have not defined what counts as a "private conversation" under §1335(a)(4), so these two rules can conflict. For example, a conversation on a busy sidewalk might seem public, but if the people involved lower their voices or step away from others, it could be treated as private under the undefined statutory language. The safest approach is to assume that any conversation not clearly broadcast to bystanders may require all parties’ consent, even in a public place.

Delaware’s law says a "private place" is somewhere you can reasonably expect to be free from casual or hostile intrusion, like someone’s home or a private office. A "public place" is somewhere the public or a large group has access, such as streets, sidewalks, parks, or the common areas of stores and restaurants. The law expressly carves public places out of the device-installation and surveillance provisions of §1335(a)(1)-(3) via §1337’s definition. However, §1337’s definition only applies to those subsections and does not textually reach §1335(a)(4)’s separate clause about intercepting a "message... including private conversation" without all-party consent. So even if you’re in a public place, if the conversation itself feels private—like a hushed argument in a corner of a park—Delaware’s courts haven’t said whether Chapter 5’s all-party consent rule applies. The only clear rule is that recording in a genuinely public space with no effort to keep the conversation private is less risky, but it’s not risk-free.

Delaware does not have a state law that directly addresses whether you can record police officers performing their duties in public. However, per 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 to record on-duty police officers in public, recording police during a traffic stop, protest, or other public interaction is generally allowed, even if it includes audio. The key is that the interaction must be happening in a public space and the officer must be acting in an official capacity. If the officer moves into a non-public area or exhibits cues suggesting a private exchange, the rules become less clear because on-duty police interactions in public are generally held to lack a reasonable expectation of privacy, but the "private conversation" threshold under §1335(a)(4) is undefined. Still, Delaware courts have not issued a ruling that changes this federal precedent, so the safe assumption is that recording police in public is protected speech.

Recording video without audio in a public place is the lowest-risk activity under Delaware law. Chapter 24’s one-party consent rule does not apply to silent video recording because its definitions are built around spoken/transmitted communications, not 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. The privacy chapter (Chapter 5) has a separate rule at §1335(a)(2)-(3) that bans installing or using devices to observe or record events in a private place without consent, but §1337 expressly excludes public places from that provision. So filming a fight on a sidewalk, a protest, or a public event with no audio is generally allowed. The only exception is if you’re secretly filming inside someone’s home or a private office, which is treated as a private place under the law, even if no audio is captured.

Recording inside another person’s home is the highest-risk scenario under Delaware law. The state’s privacy law at §1335(a)(2)-(3) specifically bans installing or using recording devices in a private place without the consent of everyone who has a privacy interest there. This includes guests, roommates, or even family members who haven’t agreed to be recorded. Delaware’s courts have not clearly resolved the interaction between §1335(a)(2)-(3) and Chapter 24’s one-party consent rule, leaving this scenario unresolved. Because of this unresolved conflict, the safest approach is to never record inside someone else’s home without explicit, informed consent from everyone present. Even if you’re a participant in the conversation, the law isn’t clear enough to rely on one-party consent alone.

Imagine you’re at a public park and see two people arguing loudly near a crowded picnic area. You decide to record the argument with your phone. Because the conversation is loud and happening in a genuinely public space with bystanders nearby, it is unlikely to fall within §1335(a)(4)’s undefined "private conversation" threshold, which turns on whether the conversation itself is private in substance, not merely on physical location. Recording this way is probably allowed under both chapters. Now imagine the same two people lower their voices and step behind a tree, away from others. Even though you’re still in a public park, their behavior suggests they’re trying to keep the conversation private. In this case, Delaware’s courts haven’t said whether Chapter 5’s all-party consent rule applies, so the safer choice is to stop recording or ask for consent. If you keep recording without consent, you risk violating the law.