Last Updated: January 2026 | Verified against current Delaware Code
Quick Answer
Delaware has conflicting recording laws that create legal ambiguity. The state’s wiretapping law (11 Del. C. § 2402) allows recording with one-party consent, but the privacy law (11 Del. C. § 1335) requires all-party consent. Because of this conflict, Delaware is generally treated as an all-party consent state, and it’s strongly recommended to get consent from everyone before recording any private conversation.
Class E Felony (wiretapping) / Misdemeanor (privacy)
Understanding Delaware’s Conflicting Laws
The Legal Conflict
Delaware is unusual in having two different statutes that appear to conflict on the consent requirement:
Statute
Consent Required
Penalty
Wiretapping Law (§ 2402)
One-party consent
Class E Felony, up to $10,000
Privacy Law (§ 1335)
All-party consent
Misdemeanor
Why All-Party Consent Is Recommended
Because of this legal uncertainty, courts and legal experts generally advise following the stricter standard. Recording without all-party consent could expose you to liability under the privacy statute even if you technically comply with the wiretapping statute. When in doubt, get everyone’s consent.
11 Del. C. § 1335 – Privacy violations (all-party consent)
11 Del. C. § 1335(a)(4) – Specifically prohibits recording without consent of all parties
11 Del. C. § 1335(a)(1) – Prohibits trespassing to eavesdrop
Recording Phone Calls in Delaware
Can You Record Phone Calls in Delaware?
Due to the legal conflict, the safest approach is to obtain consent from all parties before recording any telephone conversation. While § 2402 might technically permit one-party consent for recording, § 1335 appears to require all-party consent.
To legally record a phone call in Delaware:
Get verbal or written consent from all parties
Announce at the beginning that the call is being recorded
Do not record for criminal or tortious purposes (even with consent)
If calling from a one-party state to Delaware, treat it as all-party consent
The safest approach is always to get consent from everyone on the call
Business Call Recording
Businesses in Delaware should use explicit notification before recording customer calls. A clear statement like “This call may be recorded” at the beginning of the call, combined with the caller’s continued participation, generally establishes implied consent.
Recording In-Person Conversations
When Is Recording Legal?
When all parties consent to the recording
In public places where there is no reasonable expectation of privacy
At public government meetings and proceedings
When not done for criminal or tortious purposes
When Is Recording Illegal?
Recording private conversations without consent of all parties
Trespassing on private property to eavesdrop or conduct surveillance
Using recording devices to capture conversations you’re not part of
Recording for the purpose of committing a crime or tort
Trespass to Eavesdrop
Delaware specifically prohibits trespassing on private property for the purpose of eavesdropping or conducting surveillance. This includes physically entering someone’s property or using electronic means to capture private communications from their property.
Delaware Video Recording Laws
Video Surveillance
Delaware’s laws primarily focus on audio recording. Video recording without audio is generally permitted in public areas where there is no expectation of privacy. However, video recording in private areas without consent raises significant legal concerns.
Hidden Cameras
Delaware law prohibits:
Recording in areas where people have a reasonable expectation of privacy
Capturing intimate images without consent
Video voyeurism in private spaces (bathrooms, bedrooms, changing areas)
Public Spaces
Recording in public spaces where there is no expectation of privacy is generally permitted, including streets, parks, and public buildings.
Recording in the Workplace
Can You Record at Work?
Given Delaware’s conflicting laws, the safest approach in the workplace is to get consent from all parties before recording any conversation – whether in-person or by phone.
Even if one-party consent applied, company policies may prohibit recording in the workplace. Violating workplace policies can result in termination regardless of whether the recording was technically legal.
Employer Monitoring
Employers may monitor workplace communications in common areas, but should provide notice to employees about monitoring practices. Recording in private areas like restrooms or break rooms is prohibited.
Recording Police and Government Officials
Can You Record Police Officers in Delaware?
Yes. The First Amendment protects your right to record police officers performing their public duties. This right applies when:
Officers are performing public duties in public spaces
You don’t interfere with their activities
You maintain a safe distance
You’re not trespassing
Recording Government Meetings
Delaware’s Freedom of Information Act (FOIA) guarantees public access to government meetings. Recording at open public meetings is permitted.
Penalties for Illegal Recording in Delaware
Criminal Penalties
Violation
Classification
Penalty
Wiretapping (§ 2402)
Class E Felony
Up to $10,000 fine
Privacy violation (§ 1335)
Misdemeanor
Fines and potential jail time
Disclosure of intercepted communications
Class E Felony
Up to $10,000 fine
Trespass to eavesdrop
Misdemeanor
Varies
Civil Liability
In addition to criminal penalties, victims of illegal recording may bring civil lawsuits for:
Invasion of privacy
Actual damages suffered
Punitive damages in egregious cases
Using Recordings as Evidence in Delaware
Admissibility
Recordings made in violation of Delaware’s recording laws may be inadmissible as evidence in court. To ensure your recording can be used in legal proceedings:
Obtain consent from all parties before recording
Document when and how consent was given
Preserve the original recording without editing
Frequently Asked Questions
Is Delaware a one-party consent state?
Delaware has conflicting laws. The wiretapping statute (§ 2402) allows one-party consent, but the privacy statute (§ 1335) requires all-party consent. Due to this conflict, Delaware is generally treated as an all-party consent state.
Is Delaware a two-party consent state?
Effectively, yes. While there is legal ambiguity due to conflicting statutes, the safer approach is to treat Delaware as an all-party consent state and get everyone’s permission before recording.
Can I record a conversation without the other person knowing in Delaware?
Not recommended. Due to Delaware’s conflicting laws, you should get consent from all parties before recording any private conversation.
Can I record a phone call in Delaware?
Yes, but only with consent from all parties on the call. This is the safest approach given Delaware’s legal ambiguity.
What is the penalty for illegal recording in Delaware?
Wiretapping violations are Class E felonies with fines up to $10,000. Privacy violations are misdemeanors. Civil lawsuits may also be filed.
Can I record my employer in Delaware?
Due to the legal conflict, you should get consent from all parties before recording workplace conversations. Additionally, check company policies – violating them can result in termination.
Can I record police in Delaware?
Yes. The First Amendment protects your right to record police performing public duties, as long as you don’t interfere with their work.
Can recordings be used in court in Delaware?
Recordings made without proper consent may be inadmissible. To use a recording as evidence, ensure you had consent from all parties.
Disclaimer: This information is provided for educational purposes and should not be considered legal advice. Delaware’s recording laws contain significant ambiguity due to conflicting statutes. If you have questions about your specific situation, consult with a licensed Delaware attorney.
Two-Party Consent States Reference
Delaware is listed among two-party consent states due to its privacy statute (§ 1335), though the wiretapping statute (§ 2402) technically allows one-party consent.
*Delaware has conflicting statutes. Connecticut has different rules for phone vs. in-person. Michigan courts have interpreted the statute as one-party consent in some circumstances.
Hi Charlene, in 2014 Del. Code Ann. tit. 11, § 1335 was enacted which changed the wiretapping law into ‘all-party’, there is still a bit of grey area in terms of Delaware recording law so we always recommend going with the strictest interpretation of the law.
That being said in Delaware it’s understood to be a one-party consent state as long as the recordings aren’t for nefarious purposes or to defame someone.
https://recordinglaw.com/party-two-party-consent-states/
Which is correct?
Is Delaware a two-party consent state or no?
Delaware is a two party consent state.
When did Delaware change from one party consent state… i k ow it was back in 2014
Hi Charlene, in 2014 Del. Code Ann. tit. 11, § 1335 was enacted which changed the wiretapping law into ‘all-party’, there is still a bit of grey area in terms of Delaware recording law so we always recommend going with the strictest interpretation of the law.
That being said in Delaware it’s understood to be a one-party consent state as long as the recordings aren’t for nefarious purposes or to defame someone.