Delaware

Delaware Recording Laws (2026): Two-Statute Consent Conflict

By Recording Law Editorial TeamPublished June 5, 202612 min read

Delaware is effectively an all-party consent state for recording private conversations and phone calls. Two statutes conflict: 11 Del. C. § 2402(c)(4) permits one-party consent recording, while 11 Del. C. § 1335(a)(4) independently requires the consent of every party. No court has resolved the conflict, and illegal recording is both a crime and a civil wrong.

Delaware recording law at a glance

Question	Answer
Consent rule in practice	All-party consent required
Wiretapping statute	11 Del. C. § 2402(c)(4) (one-party consent exception)
Privacy statute	11 Del. C. § 1335(a)(4) (all-party consent required)
Conflict resolved by courts?	No
Conflict resolved by legislature?	No
Criminal penalty: § 2402 violation	Class E felony, up to $10,000 fine
Criminal penalty: § 1335(a)(4) violation	Class A misdemeanor, up to 1 year / $2,300
Civil damages: § 2409	Min. $100/day or $1,000, plus punitive damages and attorney fees
Hidden cameras in private spaces	Class G felony under § 1335 voyeurism subsections
Recording police in public	Yes, protected by First Amendment (Third Circuit)

The two-statute conflict is the defining feature of Delaware recording law. For full treatment of each topic, see the in-depth index below.

Recording in-person conversations in Delaware

When you record a face-to-face conversation you are part of, § 2402(c)(4) offers a one-party consent defense: your own participation satisfies it. But § 1335(a)(4) simultaneously prohibits intercepting "a message by telephone, telegraph, letter or other means of communicating privately, including private conversation" without the consent of all parties.

The phrase "including private conversation" covers in-person oral communication directly. Neither statute repeals the other, and they sit in different chapters of the Delaware Criminal Code, so a person who secretly records their own in-person meeting is arguably protected under § 2402(c)(4) yet simultaneously exposed to Class A misdemeanor liability under § 1335(a)(4). The only safe approach is to obtain consent from every person present before recording.

stack of sealed white envelopes with a wax seal visible on the top one

Recording phone calls in Delaware

The same conflict applies to telephone calls. Section 2402(c)(4) permits recording if you are a party or at least one party consents, provided the recording is not for a criminal or tortious purpose. Section 1335(a)(4) independently prohibits intercepting any telephone message without the consent of all parties.

For interstate calls, the more protective state's law generally governs. If you are in Delaware calling someone in a one-party state, Delaware's all-party default still applies to you; if the other party is in another all-party state (California, Florida, Pennsylvania), that state's law also applies. Announcing the recording at the start of the call and receiving verbal confirmation from every participant before recording begins is the safe rule and standard Delaware practice. See Delaware Phone Call Recording Laws for interstate scenarios.

intercom panel with numbered buttons mounted on an apartment building entrance

Hidden cameras, doorbells, and nanny cams

Video recording on your own property is generally permissible when aimed at areas with no reasonable expectation of privacy: front doors, driveways, common hallways, and similar spaces. The legal risk rises sharply when a camera is aimed at a space where people reasonably expect to be unobserved.

Section 1335 contains voyeurism-specific Class G felony subsections. Section 1335(a)(6) prohibits secretly recording a person in a state of undress in a private space such as a bathroom, bedroom, or dressing room, and § 1335(a)(7) prohibits secretly recording under or through a person's clothing. These carry up to two years of imprisonment.

The audio caveat matters for any camera: if the device captures audio of a private conversation, § 1335(a)(4)'s all-party consent requirement applies to the audio even if the video is lawful. A nanny cam recording audio of a private conversation in a home requires the consent of all parties.

For full treatment of security cameras, doorbells, and HOA rules, see Delaware Security Camera Laws and Delaware Voyeurism Laws.

pen resting across an open leather-bound notebook with blank cream pages

Penalties for illegal recording in Delaware

Counterintuitively, the statute that contains the one-party consent exception (§ 2402) carries the higher criminal penalty.

Violation	Classification	Max Prison	Max Fine
Wiretapping interception (§ 2402)	Class E Felony	5 years	$10,000
Disclosing intercepted communications (§ 2402)	Class F Felony	3 years	$10,000
Recording without all-party consent (§ 1335(a)(4))	Class A Misdemeanor	1 year	$2,300
Trespass to eavesdrop (§ 1335(a)(1))	Class A Misdemeanor	1 year	$2,300
Voyeurism recording in private spaces (§ 1335(a)(6), (a)(7))	Class G Felony	2 years	Varies

Per 11 Del. C. § 1335(c), the § 1335(a)(4) recording offense is a Class A misdemeanor with no prior-conviction felony enhancement; the Class G felony classification applies only to the voyeurism subsections (a)(6), (a)(7), and (a)(9)c. Subsection (a)(9)d is a sentencing aggravator that elevates the penalty when the victim is a minor, not a standalone Class G felony. Do not treat the lower § 1335 baseline as a safer statute to violate, as both expose real criminal liability.

Civil liability under 11 Del. C. § 2409 lets victims of unlawful interception recover actual damages (minimum $100 per day or $1,000, whichever is higher), punitive damages for willful conduct, and reasonable attorney fees. Good-faith reliance on a court order or legislative authorization is a complete defense under the wiretapping chapter, but does not extend to § 1335.

vintage brass desk bell on a dark green leather desk mat

Recording the police in Delaware

You have a First Amendment right to record police officers performing official duties in public in Delaware. The controlling authority is Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017), in which the Third Circuit held the First Amendment protects photographing and recording police conducting official duties in a public place; Delaware is within the Third Circuit, so that ruling applies directly.

To exercise the right safely, record from a public space where you have a lawful right to be, do not interfere, maintain a reasonable distance, and comply with any lawful order that does not itself require you to stop recording. If told to stop in a public space, you may calmly state you are exercising your First Amendment right, but always prioritize your safety.

Delaware's body-worn camera law, 11 Del. C. § 8402A (Title 11, Chapter 84A), requires officers to wear and use body cameras during public interactions on duty. The prohibition on altering or erasing recordings is set out in the implementing regulation, 1 Del. Admin. Code 801-26.0, not in the statute itself. Delaware's Freedom of Information Act, 29 Del. C. Chapter 100, guarantees public access to government meetings, and recording open public meetings under 29 Del. C. § 10004 is generally permitted.

See the Delaware Laws on Recording Police spoke for full detail.

Special topics in Delaware

The two-statute conflict: why § 2402 does not override § 1335

The only court decision addressing the conflict is United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975), which held a party may record their own conversation without all-party consent. That 51-year-old, non-binding federal district court opinion is legally unreliable: no Delaware Supreme Court or Superior Court decision has adopted or distinguished it, so relying on it gambles against Class A misdemeanor exposure under § 1335(a)(4). Both leading practitioner sources confirm the all-party default: the Reporters Committee for Freedom of the Press (Reporters Recording Guide, October 2019) and Kilpatrick Townsend's July 2024 50-state wiretap survey, and the Delaware 153rd General Assembly (2025-2026) has introduced no bill amending either statute.

Employer monitoring: 19 Del. C. § 705

Delaware employers must give prior notice before monitoring employee telephone calls, electronic mail, or internet use on employer-provided systems under 19 Del. C. § 705, either as a one-time written acknowledgment or as a daily electronic notice; the civil penalty for non-compliance is $100 per violation. That notice does not substitute for all-party consent under § 1335 when calls are recorded, so employers who record (not merely monitor) calls should also obtain affirmative written consent.

See Delaware Workplace Recording Laws.

Federal overlay: Wiretap Act, TCPA, and FCC rules

The federal Wiretap Act, 18 U.S.C. § 2511(2)(d), permits one-party consent recording using essentially the same language as § 2402(c)(4), but does not preempt a stricter state standard, so a single recording can be lawful federally and unlawful under Delaware § 1335 simultaneously. FCC Declaratory Ruling FCC 24-17 (February 8, 2024) classified AI-generated voice calls as "artificial or prerecorded voice" calls under the TCPA, 47 U.S.C. § 227, requiring prior express consent. The FCC One-to-One Consent Rule was vacated by the Eleventh Circuit on January 24, 2025, in Insurance Marketing Coalition v. FCC, No. 24-10277 (FCC declined to challenge it in April 2025 and formally eliminated it in September 2025), restoring the prior blanket-consent regime; the FCC beep-tone regulation at 47 C.F.R. § 64.501 applies to common carriers and operates independently of Delaware law.

HIPAA, FERPA, and NLRB

HIPAA's Privacy Rule (45 C.F.R. §§ 164.502, 164.508) bars recording that captures protected health information without authorization, so Delaware providers must satisfy both HIPAA and § 1335 (see Delaware Medical Recording Laws). FERPA (20 U.S.C. § 1232g; 34 C.F.R. Part 99) restricts disclosure of education records at federally funded institutions, so recordings that are education records require FERPA-compliant consent in addition to state-law compliance (see Delaware School Recording Laws).

The NLRB's Stericycle standard (372 NLRB No. 113, Aug. 2, 2023) treats workplace no-recording policies as potentially unlawful where they tend to chill protected concerted activity, and NLRB GC Memorandum 25-07 (June 25, 2025) directs regions to treat surreptitious recording of collective-bargaining sessions as a per se NLRA violation (Acting GC prosecutorial policy, not adjudicated Board law). CFPB Regulation F, 12 C.F.R. § 1006.100(b)(3), requires debt collectors to retain call recordings for three years; Delaware collectors must still obtain all-party consent under § 1335 first.

Recent legal developments

January 24, 2025: Eleventh Circuit vacated the FCC's One-to-One Consent Rule in Insurance Marketing Coalition v. FCC, No. 24-10277, restoring the prior blanket-consent regime (FCC declined to challenge it, April 2025; final repeal rule, September 2025).
June 25, 2025: NLRB Acting GC issued Memo 25-07 treating surreptitious recording of collective-bargaining sessions as a per se NLRA violation.
No change to § 2402 or § 1335: The Delaware 153rd General Assembly (2025-2026) has introduced no bill resolving the consent conflict.

Delaware recording laws in depth

The following sub-pages provide detailed treatment of specific recording contexts in Delaware. All are published.

By type of recording

By place or relationship

More Delaware laws

This article is general legal information, not legal advice. Recording laws change and apply differently to each situation. For advice about your situation, consult a licensed Delaware attorney.

More Delaware Laws

Sources and References

11 Del. C. § 2402(c)(4)(delcode.delaware.gov).gov
11 Del. C. § 1335(a)(4)(delcode.delaware.gov).gov
11 Del. C. § 2402(c)(4); 11 Del. C. § 1335(a)(4)(delcode.delaware.gov).gov
Delaware Courts: Opinions Index (Supreme Court, Superior Court, Court of Chancery) 2025-2026(courts.delaware.gov).gov
United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975)
Delaware 153rd General Assembly (2025-2026): All Legislation(legis.delaware.gov).gov
11 Del. C. § 2402; 11 Del. C. § 1335(delcode.delaware.gov).gov
19 Del. C. § 705: Notice of Monitoring of Telephone Transmissions, Electronic Mail and Internet Usage(delcode.delaware.gov).gov
19 Del. C. § 705; 11 Del. C. § 1335(delcode.delaware.gov).gov
18 U.S.C. § 2511(2)(d): Federal Wiretap Act(law.cornell.edu)
FCC Declaratory Ruling, FCC 24-17, In re Implications of Artificial Intelligence Technologies on Protecting Consumers Under the TCPA (Feb. 8, 2024)(docs.fcc.gov).gov
Insurance Marketing Coalition v. FCC, No. 24-10277 (11th Cir. Jan. 24, 2025), vacating FCC Order FCC-23-107; FCC Final Rule formally eliminating rule (Sept. 2025)(consumerfinancialserviceslawmonitor.com)
47 C.F.R. § 64.501: Telephone Monitoring and Recording(ecfr.gov).gov
Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017)
45 C.F.R. §§ 164.502, 164.508: HIPAA Privacy Rule; HHS OCR enforcement guidance(hhs.gov).gov
20 U.S.C. § 1232g (FERPA); 34 C.F.R. §§ 99.3, 99.30(ed.gov).gov
Stericycle, Inc., 372 NLRB No. 113 (Aug. 2, 2023)(nlrb.gov).gov
NLRB GC Memorandum 25-07, Surreptitious Recordings of Collective-Bargaining Sessions as a Per Se Violation of the NLRA (June 25, 2025)(nlrb.gov).gov
12 C.F.R. § 1006.100(b)(3): Debt Collection Practices (Regulation F); CFPB Debt Collection Rule (Oct. 2020)(ecfr.gov).gov
Reporters Committee for Freedom of the Press, Reporters Recording Guide: Delaware (last updated October 2019)(rcfp.org)
Kilpatrick Townsend, Wiretap Laws in the United States (July 2024)(ktslaw.com)
Delaware Attorney General Opinions (2024-2026)(attorneygeneral.delaware.gov).gov
DOJ Justice Manual § 9-7.302: Consensual Monitoring(justice.gov).gov
delcode.delaware.gov.gov
delcode.delaware.gov.gov