Deleting an Instagram Post Was Evidence-Tampering–Webb v. U.S.

This is an assault case. Soon after the assault, the defendant made a public Instagram post showing a bloody fist and the caption “Got slim blood all on me … #NoSuckaShit.” A law enforcement officer saw the post and screenshotted it, then called the defendant. The post came down shortly after that call. The defendant was convicted of assault and evidence-tampering. I’m only blogging the latter.

The statute defines the crime:

A person commits the offense of tampering with physical evidence if, knowing or having reason to believe an official proceeding has begun or knowing that an official proceeding is likely to be instituted, that person alters, destroys, mutilates, conceals, or removes a record, document, or other object, with intent to impair its integrity or its availability for use in the official proceeding.

From an Internet Law standpoint, the tension should be obvious. The crime is called “tampering with physical evidence” but the protected evidence is defined as “a record, document, or other object.” Those aren’t enumerated as physical records or documents, though that might be inferred from the context.

The defendant admitted he knew that the police investigation had been started and he deleted his Instagram post to thwart it. That leaves the only open questions: was the Instagram post “a record, document, or other object,” and did he impair its integrity or availability?

The court says “yes.” In this context, the court says that “physical” evidence is the antonym of testimonial evidence, so the protected evidence includes all tangible and intangible non-testimonial evidence. The federal statutory language is virtually identical, and “Courts have held that 18 U.S.C. § 1512(c) covers digital evidence. For example, the Fifth Circuit held that the deletion of emails qualifies as a violation of the statute.” For more on the federal crime, see this story.

Having established that intangible evidence such as an Instagram post can be “a record, document, or other object,” the rest of the case is easy. “Treating the present screenshot of an Instagram post as a “record” aligns with how the term has often encompassed digital materials like photographs, emails, video recordings, and audio recordings.”

The deletion of the Instagram post was “tampering”:

When Webb removed the image and accompanying comments from his Instagram account, he altered and concealed the post’s digital profile such that the photo of his fist, the time stamp, and the thread of comments were no longer available to view. Even if that information were still accessible to the server’s owners or to software engineers, Webb concealed the post’s data such that it was no longer visible to the public, to Webb, or to Webb’s Instagram followers.

We’ve been in the Internet era for 30+ years, and yet we are still wrestling with the most basic Internet Law question of all: to what extent do old laws apply to the new technology, or do we need new laws to fill any gaps? In this particular case, the old law applied to the new technology without any need for statutory modification because the old law’s terminology covered both tangibles and intangibles. There may be other areas of law where collapsing the distinction between tangibles and intangibles is highly problematic (the doctrine of conversion comes to mind), but I didn’t see that as a problem here.

To be clear, deleting electronic data and records isn’t always “evidence-tampering.” The deleter has to know that an investigation has begun and intend to thwart the investigation. So feel free to delete items before you get that notice. Indeed, it’s good hygiene to purge what you don’t need periodically. Also, it’s rarely a good idea to boast about your crimes online. 🤷‍♂️

Case Citation: Webb v. U.S., 2024 WL 3448243 (D.C. Ct. App. July 18, 2024).

UPDATE: With respect to the last point about the inadvisability of doing it for the ‘gram, see U.S. v. Lesh, 2024 WL 3418837 (10th Cir. July 16, 2024).