Law / United States / 
Delaware
Delaware Wiretapping, Electronic Surveillance and Interception of Communications Statute
11 Del. C. §§ 2401, 2402, 2409
In force.
An interception and recording consent rule binding public and private bodies.
- Obligation class
- Consent, Prohibition
As of .
What it requires
- Do not intercept, or endeavor or procure another to intercept, a wire, oral or electronic communication unless you are a party to it or one of the parties has given prior consent, and never for the purpose of a criminal or tortious act; one party's consent is enough under this chapter.
- Do not intentionally disclose or use the contents of a wire, oral or electronic communication that you know, or have reason to know, were obtained by an interception made in violation of this chapter.
- If you provide an electronic communication service to the public, do not intentionally divulge the contents of a communication in transmission on your service to anyone other than an addressee, an intended recipient or their agent, except as federal or state law authorizes, to a person forwarding it to its destination, or, for contents inadvertently obtained that appear to pertain to a crime, to a law-enforcement agency.
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
Violating the interception, disclosure or use prohibitions in 11 Del. C. § 2402(a) is a class E felony under § 2402(b), punishable by a fine of not more than $10,000 and, under the general felony sentencing scale in § 4205(b)(5), up to 5 years of incarceration; a public provider's improper divulgence under § 2402(d) is generally a class F felony with a fine of not more than $10,000 under § 2402(e)(1).
Statutory damages
Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher, plus punitive damages and a reasonable attorney's fee and other litigation costs.
- As of
- Currency
- USD
- Per person minimum
- 1,000
Who enforces it
Enforcement body
A private civil action under 11 Del. C. § 2409; criminal prosecution by the State.
Settledness
- As of
- Open questions
- Does 11 Del. C. § 1335(a)(4)'s all-party consent requirement for intercepting a private message override this section's one-party consent exception for the same conduct?
What this law does
Delaware bars any person from intentionally intercepting, endeavoring to intercept, or procuring another to intercept a wire, oral or electronic communication, and from intentionally disclosing or using its contents knowing or having reason to know they were obtained by an interception that violates the chapter.
Interception is lawful where the person is a party to the communication or one of the parties has given prior consent, unless the interception is for the purpose of a criminal or tortious act. Violating this prohibition is a class E felony punishable by a fine of not more than $10,000. An oral communication is protected only where the speaker exhibits an expectation that it is not subject to interception under circumstances justifying that expectation.
An electronic communication does not include a tone-only paging communication or a communication from a tracking device. Telephone equipment furnished by a provider, or by the subscriber for connection to the service, and used in the ordinary course of business is not an intercepting device.
It is also lawful to intercept or access an electronic communication made through a system configured so that it is readily accessible to the general public, and for a provider of electronic communication service to record that a communication was initiated or completed to protect itself, another provider or a user from fraudulent, unlawful or abusive use.
A provider's switchboard operator, officer, employee or agent may intercept, disclose or use a communication in the normal course of employment where necessarily incident to its service or protecting its rights or property, though a provider of wire communications service to the public may not use service observing or random monitoring except for mechanical or service-quality checks, and law enforcement may intercept under a court order or the chapter's other listed exceptions.
A person or entity providing an electronic communication service to the public may not intentionally divulge the contents of a communication while in transmission on that service to anyone other than an addressee, an intended recipient or their agent, except as federal or state law authorizes, to a person forwarding it to its destination, or, for contents inadvertently obtained that appear to pertain to a crime, to a law-enforcement agency.
Violating the provider-divulgence duty is generally a class F felony with a fine of not more than $10,000. A person whose wire, oral or electronic communication is intercepted, disclosed or used in violation of the chapter has a civil action for actual damages, but not less than liquidated damages of $100 a day of violation or $1,000, whichever is higher, plus punitive damages and a reasonable attorney's fee and litigation costs.
When LexLint raises it
When your app profile says your app records conversations, processes voice recordings or deploys a chatbot.