Call Recording Laws in Delaware

Plain-English summary

Delaware’s wiretap statute, Del. Code tit. 11, § 2402, mirrors the federal one-party-consent rule. But Delaware also has a separate privacy statute at tit. 11, § 1335(a)(4), which prohibits the interception of any “private communication” without all parties’ consent. The two statutes coexist uneasily, and Delaware courts have not definitively resolved which controls for ordinary participant recording.

The cautious practice in Delaware is to obtain the other party’s consent before recording, treating Delaware as effectively all-party for compliance purposes. Federal law (§ 2511(2)(d)) permits one-party recording, but does not preempt the stricter Delaware privacy statute.

Case law of note

No appellate decision in Delaware has materially reshaped the participant-recording rule in recent decades. Lower-court decisions exist but do not change the analytical framework set by the statute and by general federal precedent under § 2511.

Edge cases and special rules

In-person vs. phone. Mixed; privacy statute may impose all-party
Voicemail. Leaving a message creates the recording at the recipient’s direction; reviewing one’s own voicemail is not interception.
Vicarious consent. Several federal courts have recognized a parental-consent doctrine permitting a parent to consent on behalf of a minor child (Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998)). State law varies; no controlling Delaware appellate decision on the question.
Law enforcement. Court-authorized intercepts are governed by a separate framework and are outside the scope of this page.
Cross-border calls. Where any participant is in an all-party state, treat the stricter rule as the safer default. See cross-border calls.

Penalties and remedies

Criminal: Class E felony for non-consensual interception under § 2402; misdemeanor under § 1335.

Civil: Yes — § 2409 provides a civil action.

Evidence: a recording made in violation of the Delaware statute is generally inadmissible in Delaware proceedings. Federal § 2515 separately bars use of unlawfully intercepted communications in federal proceedings.

Practical guidance

If you are recording an ordinary phone call: you may record without notifying the other party, but verbal consent is the safer practice if the recording may be used in a proceeding.
Suggested opening: See our consent script templates for jurisdiction-specific language.
If the other party objects: stop recording. Continued recording over an objection is a separate factual question that no consent statute helps you with.
What to keep: the date and time of the call, the parties’ phone numbers, a description of the consent given (express verbal, continued participation after notice, etc.), and the audio file itself.