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Legal Statutes: Delaware

UPDATED April 12, 2017

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Subchapter I. Electronic Surveillance and Interception of Communications

back to top § 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:

(1) For an operator of a switchboard or an officer, employee or agent of a provider of wire or electronic communication service whose facilities are used in the transmission of wire or electronic communication to intercept, disclose or use such communication in the normal course of employment while engaged in any activity that is necessarily incident to the rendition of such person's service or to the protection of the rights or property of the provider of that service, except that a provider of wire communications service to the public may not utilize service observing or random monitoring except for mechanical or service quality control checks.

(2) For a provider of wire or electronic communication service, its officers, employees and agents, landlords, custodians or other persons to provide information, facilities or technical assistance to persons authorized by federal or State law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, if the provider, its officers, employees or agents, landlord, custodian or other specified person has been provided with a court order signed by an authorizing judge directing the provision of information, facilities or technical assistance.

a. An order as prescribed by this paragraph shall set forth the period of time during which the provision of the information, facilities or technical assistance is authorized and specify the information, facilities or technical assistance required.

b. A provider of wire or electronic communication service, its officers, employees or agents, or landlord, custodian or other specified person may not disclose the existence of any interception or surveillance or the device used to accomplish the interception or surveillance with respect to which the person has been furnished an order under this paragraph, except as may otherwise be required by legal process and then only after prior notification to the judge who granted the order, if appropriate, or the Attorney General of this State or the Attorney General's designee. Any unauthorized disclosure shall render the person liable for compensatory damages.

c. No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees or agents, or landlord, custodian or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order issued pursuant to this chapter.

(3) For an investigative or law-enforcement officer acting in a criminal investigation or any other person acting at the prior direction and under the supervision of an investigative or law-enforcement officer in such investigation pursuant to a court order issued by the Superior Court pursuant to § 2407 of this title to intercept a wire, oral or electronic communication in order to provide evidence of the commission of the offenses including racketeering, murder, kidnapping, human trafficking, gambling, robbery, bribery, extortion, dealing in narcotic drugs or dangerous drugs, dealing in central nervous system depressant or stimulant drugs, controlled substances or counterfeit controlled substances, prison escape, jury tampering, stalking, any felony involving risk of physical injury to a victim or any conspiracy or solicitation to commit any of the foregoing offenses or which may provide evidence aiding in the apprehension of the perpetrator of any of the foregoing offenses.

(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, 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.

(5) For a law-enforcement officer in the course of the officer's regular duty to intercept an oral communication, if:

a. The law-enforcement officer initially detained 1 of the parties and overhears a conversation;

b. The law-enforcement officer is a party to the oral communication;

c. Both parties to the oral communication are present in a law-enforcement facility where there is notice to occupants that such communications are monitored;

d. The law-enforcement officer has been identified as a law-enforcement officer to the other party to the oral communication prior to any interception; or

e. The oral interception is being made as part of a video tape recording.

(6) For an officer, employee or agent of a government emergency communications center to intercept a wire, oral or electronic communication where the officer, agent or employee is a party to a conversation concerning an emergency.

(7) For law-enforcement personnel or those acting under their direction to utilize body wires to intercept oral communications in the course of a criminal investigation when the law-enforcement personnel or a person acting under their direction is a party to the communication. Communications intercepted by such means may be recorded and may be used against the defendant in a criminal proceeding.

(8) For a person:

a. To intercept or access an electronic communication made through an electronic communication system that is configured so that the electronic communication is readily accessible to the general public;

b. To intercept any radio communication that is transmitted:

1. By any station for the use of the general public or that relates to ships, aircraft, vehicles or persons in distress;

2. By any governmental, law enforcement, civil defense, private land mobile or public safety communications system, including police and fire, readily accessible to the general public;

3. By a station operating on an authorized frequency within the bands allocated to the amateur, citizens band or general mobile radio services; or

4. By any marine or aeronautical communications system;

c. To intercept any wire or electronic communication the transmission of which is causing harmful interference to any lawfully operating station or consumer electronic equipment to the extent necessary to identify the source of the interference; or,

d. For other users of the same frequency to intercept any radio communication made through a system that utilizes frequencies monitored by individuals engaged in the provision or the use of the system, if the communication is not scrambled or encrypted.

(9) To use a pen register or trap and trace device.

(10) For a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect the provider or another provider furnishing service toward the completion of the wire or electronic communication or a user of that service, from fraudulent, unlawful or abusive use of the service.

(11) For a person acting under color of law and employed for such purpose by the Department of Correction to intercept an electronic or oral communication of any individual confined to a State correctional facility. At the direction of the Commissioner of Correction or the Commissioner's designee, a person performing an official investigation into suspected criminal activity may monitor and intercept the incoming and outgoing electronic communication of any individual incarcerated in a State correctional facility. The Department may also employ devices to monitor any incarcerated individual's incoming and outgoing electronic communication for words or phrases that would justify further investigation. The Department shall not monitor or intercept any communication between an individual confined in a State correctional facility and that individual’s attorney.

(d) Divulging contents of communications.--Except as provided in this subsection, a person or entity providing an electronic communication service to the public may not intentionally divulge the contents of any communication (other than one to the person or entity providing the service, or an agent of the person or entity) while in transmission on that service to any person or entity other than an addressee or intended recipient of the communication or an agent of the addressee or intended recipient.

(1) A person or entity providing electronic communication service to the public may divulge the contents of a communication:

a. As otherwise authorized by federal or state law;

b. To a person employed or authorized, or whose facilities are used, to forward the communication to its destination; or

c. That were inadvertently obtained by the service provider and that appear to pertain to the commission of a crime, if the divulgence is made to a law-enforcement agency.

(2) Unless the conduct is for the purpose of direct or indirect commercial advantage or private financial gain, conduct that would otherwise be an offense under this subsection is not an offense if the conduct consists of or relates to the interception of a satellite transmission that is not encrypted or scrambled and that is transmitted:

a. To a broadcasting station for purposes of retransmission to the general public; or

b. As an audio subcarrier intended for redistribution to facilities open to the public, but not including data transmissions or telephone calls.

(e) Penalties for divulging contents of communications.--Whoever violates subsection (d) of this section shall:

(1) Except as otherwise provided in this subsection, be guilty of a class F felony and fined not more than $10,000.

(2) For any offense that is a first offense:

a. Which was not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; and

b. Which involved a wire or electronic communication that was a radio communication that was not scrambled or encrypted; and

c. Which involved a communication that was not the radio portion of a cellular telephone communication, a public land mobile radio service communication or a paging service communication;

 

be guilty of a class A misdemeanor.

(3) For any offense that is a first offense:

a. Which was not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; and

b. Which involved a wire or electronic communication that was a radio communication that was not scrambled or encrypted; and

c. Which involved a communication that was the radio portion of a cellular telephone communication, a public land mobile radio service communication or a paging service communication;

 

be guilty of an unclassified misdemeanor.

(f) Civil liability for violations of § 2402 or § 2403 of this title.--A person who engages in conduct in violation of § 2402 or § 2403 of this title is subject to suit by the federal government or by the State in a court of competent jurisdiction, if the communication is:

(1) A private satellite video communication that is not scrambled or encrypted and the conduct in violation of § 2402 or § 2403 of this title is the private viewing of that communication and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain; or

(2) A radio communication that is transmitted on frequencies allocated under Subpart D of Part 74 [47 C.F.R. § 74.401 et seq.] of the Rules of the Federal Communications Commission that is not scrambled or encrypted and the conduct in violation of § 2402 or § 2403 of this title is not for a tortious or illegal purpose or for purpose of direct or indirect commercial advantage or private commercial gain.

(g) Injunctive relief--Civil penalties.--The State is entitled to appropriate injunctive relief in an action under this subsection if the violation is the person's first offense under paragraph (e)(1) of this section and the person has not been found liable in a prior civil action under § 2409 of this title. However, in any action under this subsection, if the violation is a second or subsequent offense under paragraph (e)(1) of this section or if the person has been found liable in a prior civil action under § 2409 of this title, the person is subject to a mandatory civil fine of not less than $400. The Court may use any means within its authority to enforce an injunction issued under this subsection and shall impose a civil fine of not less than $500 for each violation of an injunction issued under this subsection.

72 Laws 1999, ch. 232, § 1, eff. July 23, 1999; 70 Laws 1995, ch. 186, § 1, eff. July 10, 1995; 79 Laws 2014, ch. 276, § 7, eff. June 30, 2014.