In a case experts say shows the gap between technology and the law, a Laurel man was convicted yesterday of wiretapping by secretly placing a video camera in the bathroom of a friend's Edgewater home.
What led to a judge's conviction of Thomas Paul Deibler, 34, on two counts of wiretapping were the voices on the tape - a woman and her father wondering about the device she had found - even though the camera took pictures of the 42-year-old woman as she showered and used the bathroom in her parents' home June 19 last year.
Secretly capturing images was not illegal then, Anne Arundel County prosecutors said. A video voyeur law that took effect in October does not include surreptitious videos in a home, they said, and legislators said they exempted homes for security and other surveillance but may revisit that.
"There's definitely a loophole here," said assistant state's attorney Laura M. Skudrna.
Deibler, a tile installer, also was convicted of one count of telephone harassment. He had left three irate messages on the answering machine of David Cordle, an investigator for the state's attorney's office. One of the messages included the sound of a gun being chambered.
When sentenced Sept. 7, Deibler could receive probation or up to 8 years in prison. Skudrna said she is leaning toward asking Circuit Judge Ronald A. Silkworth for some incarceration due to the "terrible invasion" of the family's privacy.
W. Eugene Smallwood, Deibler's lawyer, is considering an appeal. Diebler has said he did not know his actions were illegal. Skudrna attempted to show that with the publicity surrounding the Linda Tripp-Monica Lewinsky-President Clinton scandal would have made Deibler aware of the law.
"The whole purpose of the wiretap act is to protect privacy," Silkworth said.
Maryland is one of few states that requires everyone in a conversation to consent to being taped. But, he said, there is no expectation of privacy in a conversation because anyone who is part of it could repeat it. Taping is not necessary for that.
Silkworth did not believe Deibler's explanation that although he wanted a video of his victim in the nude, he did not intend to capture voices.
Skudrna tried to depict Deibler as a voyeur, over Smallwood's objections that it was irrelevant. Deibler testified that he visited voyeur Web sites. In this case, the woman who found the tape told prosecutors she suspected he'd secretly videotaped her nieces four years earlier.
Lawyers say the law has so lagged behind technology that sometimes the only thing a video Peeping Tom could be charged with is trespass, a misdemeanor.
"This has been a common phenomenon, for prosecutors to find they don't have a law," said Robert Ellis Smith, publisher of the Privacy Journal, a Providence, R.I., newsletter on privacy issues. "This is a classic example of technology ahead of the law."
While a handful of states have laws banning video voyeurism, few include surveillance in a home, he said. Louisiana and Connecticut recently adopted laws to include them.
Wisconsin's highest court this week struck down the state's law criminalizing the showing of nudity without the subject's consent - a law prosecutors had used to charge video voyeurs.