In a case that underscored the gap between technology and the law, a Laurel tile installer convicted of wiretapping after he secretly placed a video camera in the bathroom of a friend's Edgewater home was sentenced yesterday to six months of home detention plus five years' probation.
In the wake of the case, Anne Arundel County's chief prosecutor said he will pursue a change in the state's law on secret videotaping so that it covers situations similar to the one in yesterday's case.
Maryland's wiretap law does not cover soundless videos. It was voices on the tape - a 42-year-old woman and her father talking about the device she found in the bathroom June 19, 1999 - that led to the conviction of Thomas Paul Deibler, even though the camera captured her in the shower and using the toilet.
The Maryland law that bars secret videotaping, which took effect after this incident, exempts private homes. Anne Arundel prosecutors have complained that the law - which permits security surveillance and allows parents to secretly videotape a nanny in their home - allows a host to secretly make a silent video of a naked house guest and would not have covered a Deibler-like situation in which a guest sets up a hidden camera.
State's Attorney Frank R. Weathersbee said he might push to change the law, and legislators have said they might revisit the exemption aimed at security and other surveillance in light of the Deibler case.
Weathersbee said he will look into drafting a bill for General Assembly consideration that would bar videotaping in a home without the owner's consent.
"We indeed may be pushing for such a law. I think it would be worthwhile. I think it would be a shame if your local plumber can come into your house and take photographs of you. That makes your home pretty insecure," Weathersbee said.
He and legal experts said it would be difficult to craft a law that targets video voyeurism but does not criminalize hidden taping for such things as insurance fraud investigations and checking on a nanny.
"It would be a real hard one to write," said Abraham A. Dash, a professor at the University of Maryland School of Law. "It would be tough to tie it to lewdness," because what one person would claim is a lewd purpose another could claim is an artistic purpose, he said.
A handful of states have tried to bar video voyeurism.
In June, however, Wisconsin's top court struck down that state's law criminalizing the showing of nudity without the subject's consent - the law prosecutors had used to charge video voyeurs.
"You could draft a law to prohibit all surreptitious videotaping, but you would have to draft the law very carefully so that you would bring into the dragnet the people you want to but exclude the people you don't," said Byron Warnken, a professor at the University of Baltimore School of Law.
Legal experts said Deibler's case is likely to test the reach of the wiretapping law.
Deibler's attorney, W. Eugene Smallwood, vowed to appeal, saying his client should not have been convicted.
"I think the law in this area needs a lot of clarification," Smallwood said.
A quirk in the law is that to win a conviction, prosecutors must prove that the defendant knew wiretapping was illegal. Deibler maintained that despite publicity surrounding the Linda Tripp wiretap case, he had no idea that wiretapping was against Maryland law.
Smallwood said Deibler, 34, did not intend to capture sound - though a separate audio wire was plugged in - only images, and that the sound was incidental.
"You'd hardly put an audio tape in somebody's bathroom," he said.
Deibler had requested treatment for voyeurism and no jail time, in a bid to save his one-man business. Assistant State's Attorney Laura M. Skudrna had requested incarceration.
Anne Arundel County Circuit Judge Ronald A. Silkworth also fined Deibler $1,000.
Silkworth sentenced Deibler to five years, the maximum, on the two wiretap convictions and suspended all but six months of home detention. Deibler is allowed to leave home for such things as work and psychiatric therapy.
Deibler was also convicted of telephone harassment for three telephone messages he left on the answering machine of the prosecutor's investigator, David Cordle, one of which included the sound of a round of ammunition being chambered in a gun.
Silkworth sentenced him to three years in prison on that count, the maximum, and suspended all but six months, to be served at the same time as the wiretap sentence. A probation violation could result in Deibler's having to serve the rest of the sentence.
State guidelines range from probation to seven months incarceration.
Deibler apologized profusely, saying he is hurt by the loss of a longtime friendship.
"I did misuse their trust, basically for my own personal jollies," he told Silkworth.
The victim did not attend the hearing because of a death in her family but relayed a message saying that her privacy "has been invaded enough" and that she did not want to discuss the case.