Delaware recording consent law for interviews: two statutes that disagree

Delaware is the state where recording lists disagree most, and for a concrete reason: two Delaware statutes give different answers. The wiretap chapter, 11 Del. C. § 2402(c)(4), says it is lawful to intercept a communication "where the person is a party to the communication or where one of the parties to the communication has given prior consent." The privacy offense, 11 Del. C. § 1335(a)(4), makes it a crime to intercept "without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation." Both are current law. For an interviewer, the only plan that satisfies both is to get the candidate's consent before any recording or transcription starts.

To see how Delaware pairs with your own state, use the consent checker.

This page sets out both statutes, why they conflict, the penalties under each, how the conflict plays out by interview format, calls with Maryland and Pennsylvania next door, and a consent line.

Statute one: the wiretap chapter, § 2402

Title 11, Chapter 24 is Delaware's version of the federal wiretap act. Section 2402(a) says no person shall "intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, oral or electronic communication," or intentionally disclose or use contents they know or have reason to know were unlawfully intercepted.

Section 2402(c) then lists lawful acts. Paragraph (4) is the one-party rule:

"For a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitutions or laws of the United States, this State or any other state or any political subdivision of the United States or this or any other state."

The chapter's definitions in § 2401 follow the federal model: "intercept" means "the aural or other acquisition of the contents of any wire, oral or electronic communication through the use of any electronic, mechanical or other device," and an oral communication is one uttered by a person "exhibiting an expectation that such communication is not subject to interception."

Statute two: violation of privacy, § 1335

Section 1335 sits in the chapter on offenses against public order. Under § 1335(a), a person is guilty of violation of privacy when, "except as authorized by law," the person does any of several things. Three paragraphs touch recording:

• (a)(2): installing "in any private place, without consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying or broadcasting sounds or events in that place";
• (a)(3): installing or using a device outside a private place to hear or record sounds originating inside that "would not ordinarily be audible or comprehensible outside," without consent; and
• (a)(4): intercepting "without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation."

Paragraph (a)(4) is the all-party rule. Its exceptions in § 1335(b) cover party lines and extensions, telephone company operations, subpoenas and certain police activity. None covers an employer recording an interview.

Why the conflict is not resolved

On their face, a participant who records a private call without telling the other side is acting lawfully under § 2402(c)(4) and unlawfully under § 1335(a)(4). Each statute has a clause that could be read to defer to the other: § 2402(a) applies "except as specifically provided in this chapter or elsewhere in this Code," and § 1335(a) applies "except as authorized by law." Someone could argue that § 2402(c)(4) is the authorization § 1335 refers to. We found no official source, such as a statutory note or agency guidance, that decides the point, and we have not relied on court decisions here. That is why some published lists count Delaware as all-party and others do not, and why our two-party consent states page lists it as disputed.

The practical answer for a hiring team does not depend on who is right: ask, and get a yes.

Penalties under each statute

The § 2409 civil claim reaches anyone who "intercepts, discloses, uses, or procures any other person to intercept, disclose or use" a communication in violation of the wiretap chapter, so forwarding a recording made by someone who was not on the call can create liability for the person who shares it.

How the conflict plays out by interview format

Calls with Maryland, Pennsylvania and New Jersey

Delaware's neighbors make the conservative reading even more sensible. Maryland and Pennsylvania both require every party's prior consent, and both treat a violation as a felony; see Maryland recording consent law for interviews and Pennsylvania wiretap law and job interviews. New Jersey is one-party. A Wilmington recruiter's day can include candidates in all four states.

Federal law (18 U.S.C. § 2511(2)(d)) allows a party to record, but stricter states have applied their own law to protect people on their side of a call. In Kearney v. Salomon Smith Barney (2006), California's Supreme Court applied California's all-party law to calls a firm's Georgia employees recorded with California clients. The general approach is in recording calls across state lines.

What it means for recording or transcribing an interview

1. Treat Delaware as all-party. Get the candidate's yes before capture, by phone, video or in person.
2. Transcription counts. The wiretap chapter's definition of intercept covers acquiring contents, and a text-only tool does that.
3. Panels agree first. Every interviewer is a party; settle recording internally before the call.
4. Share carefully. Disclosure and use of unlawfully intercepted contents are covered by § 2402 and § 2409.
5. Candidates face the same conflict. A candidate who records without telling you may be breaching § 1335(a)(4). Set a written policy for candidate requests.

A consent line for Delaware interviews

"Before we start, I'd like to [record / transcribe] this interview so
my notes for the [role] position are accurate. It's used only for this
hiring process, seen by [who], and deleted after [period]. If you'd
rather I didn't, say so and I'll take notes by hand. It won't affect
your application. Is it OK with you if I [record / transcribe]?"

[Clear yes: start capture. No, or anything unclear: capture stays off.]

On a panel, add: "Everyone on our side has agreed to this as well." Written and calendar versions are in the interview recording consent script.

Checklist for interviews with a Delaware end

1. Get a clear yes from every candidate before recording or transcribing.
2. Never leave a device recording in an interview room.
3. Agree recording with every interviewer before the call.
4. Do not forward or quote a recording unless you know it was made with consent.
5. Date your written policy and re-check Delaware's statutes yearly; a legislative fix to the conflict would change this page.