Comprehensive Overview (state-by-state) of the Legal Impact of wiretapping:
Delaware has conflicting laws in regard to privacy and eavesdropping. While the state’s interception law allows a person to intercept a communication where the person is a party or where one of the parties to the communication has given consent, the privacy law prohibits recording, hearing or observing without the consent of all parties entitled to privacy in that context.
Impact of law
As both laws address interception of communication in a conflicting manner, it is decided in court which one of the laws prevails.
Regarding personal surveillance, however, the privacy law expressly prohibits installing surveillance equipment in private places without consent, installing such devices near private places and targeting other individuals entitled to privacy there, as well as installing location tracking devices without consent.
References to Physical TSCM
The privacy law specifically mentions “any device for observing, photographing, hearing, recording, amplifying or broadcasting sounds”, as well as location tracking devices.
Pen registers and trap and trace devices, that are used monitor telephone traffic, are defined and also allowed by law.
References to Cyber TSCM
The law also describes the electronic communication media as being comprised of “electronic communication” and “electronic communications systems”. These definitions include any transfer of signs, signals, data or intelligence through electronic media, including equipment for electronic storage of electronic communications. This environment can be assumed to legally include non-physical surveillance means.
For illegal interception of communication, any person shall be guilty of a class E felony and be fined up to $10,000. Installing an illegal recording device in any private place is a class A misdemeanor punishable by up to one year in jail and fines not more than $2,300.
Any person whose wire, oral or electronic communication is intercepted, disclosed or used in violation of the state law’s provisions, is entitled to recover from the perpetrator damages of up to $100 for each day of violation, with a minimum set amount of $1,000, punitive damages plus a reasonable attorney’s fee and other litigation costs.
Del. Code Ann. Tit. 11, 1335 –Violation of privacy; class A misdemeanor; class G felony.
(a) A person is guilty of violation of privacy when, except as authorized by law, the person:
(1) Trespasses on property intending to subject anyone to eavesdropping or other surveillance in a private place; or
(2) Installs 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; or
(3) Installs or uses outside a private place any device for hearing, recording, amplifying or broadcasting sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy there; or
(4) Intercepts without the consent of all parties thereto a message by telephone, telegraph, letter or other means of communicating privately, including private conversation; or
(5) Divulges without the consent of the sender and the receiver the existence or contents of any message […]
(8) Knowingly installs an electronic or mechanical location tracking device in or on a motor vehicle without the consent of the registered owner, lessor or lessee of said vehicle.
Any violation of paragraph (a)(1), (a)(2), (a)(3), (a)(4), (a)(5), (a)(8), or (a)(9) of this section shall be a class A misdemeanor. Any violation of paragraph (a)(6), (a)(7), (a)(9)c., or (a)(9)d. of this section shall be a class G felony.
Del. Code Ann. tit. 11, 2401 – Definitions.
When used in this chapter:
(5) ”Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any electromagnetic, photoelectronic or photo-optical system.
(7) ”Electronic communications system” means any wire, oral, radio, electromagnetic, photo-optical or photoelectronic facilities for the transmission of wire, oral or electronic communications, and any computer facilities or related electronic equipment for the wire, oral or electronic storage of electronic communications.
Del. Code Ann. tit. 11, 2402– Interception of communications generally; divulging contents of communications, violations of chapter.
(a) Prohibited acts. — Except as specifically provided in this chapter or elsewhere in this Code no person shall:
(1) Intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, oral or electronic communication;
(2) Intentionally disclose or endeavor to disclose to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this chapter; or
(3) Intentionally use or endeavor to use the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral or electronic communication in violation of this chapter.
(b) Penalties for violation of subsection (a) of this section. — Any person who violates subsection (a) of this section shall be guilty of a class E felony and be fined not more than $10,000.
(c) Lawful acts. — It is lawful:
(4) 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 […]
(9) To use a pen register or trap and trace device.
Del. Code Ann. tit. 11, 2409 – Civil liability; defense to civil or criminal action.
(a) Civil liability. — Any person whose wire, oral or electronic communication is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses, uses, or procures any other person to intercept, disclose or use the communications and be entitled to recover from any person:
(1) 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;
(2) Punitive damages; and,
(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.
Del. Code Ann. tit. 11, 2410 – Breaking and entering, etc., to place or remove equipment.
Any person who breaks and enters, enters under false pretenses, or trespasses upon any premises with the intent to place, adjust or remove wiretapping or electronic surveillance or eavesdropping equipment without a court order shall be guilty of a class C felony.