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

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

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.

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.

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(a)(2) separately makes it a Class A misdemeanor to install any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in a private place without the consent of the person entitled to privacy there, whether or not the footage is voyeuristic. A hidden camera or microphone installed in a guest bedroom, bathroom, or other private space triggers this offense even when it captures no undressing. Section 1335 also contains voyeurism-specific Class G felony subsections: § 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.

Penalties for illegal recording in Delaware

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

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 to the voyeurism subsections (a)(6), (a)(7), (a)(9)c., and (a)(9)d. Subsection (a)(9)d. is itself a recidivism aggravator: it makes the fact that the offense was committed within 5 years of a prior (a)(9) conviction an aggravating factor for sentencing purposes only, not a separate charged element. 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.

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

• Delaware Audio Recording Laws
• Delaware Video Recording Laws
• Delaware Phone Call Recording Laws
• Delaware Dashcam Laws

By place or relationship

• Delaware Laws on Recording Police
• Delaware Laws on Recording in Public
• Delaware Workplace Recording Laws
• Delaware Landlord-Tenant Recording Laws
• Delaware Security Camera Laws
• Delaware Voyeurism Laws
• Delaware Medical Recording Laws
• Delaware School Recording Laws

More Delaware laws

• Delaware Alimony Laws
• Delaware At-Will Employment Laws
• Delaware Child Custody Laws
• Delaware Data Privacy Laws
• Delaware Divorce 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

• Delaware AI Meeting Recording Laws
• Delaware Dashcam Laws
• Delaware Data Privacy Laws
• Delaware Deepfake Laws
• Delaware Employee Monitoring Laws
• Delaware GPS Tracking Laws
• Delaware Police Bodycam Laws
• Delaware Smart Glasses Recording Laws