Bomb-Making Online: An Abridged Sketch of Federal Criminal Law

CRS Report for Congress
Received through the CRS W eb
Bomb-Making Online: An Abridged Sketch of
F e d e ral C rimin a l L aw
Senior Specialist
American Law Division
Subsection 842(p) of title 18 of the U n i ted S tates C ode outlaws teaching,
demon s t r a t i n g, or distributing i nformation on how to make or use ex plosives,
destructive d evices, o r weapons of mass destruction either when the o ffender i ntends
the i nstruction or i nformation t o be used t o commit a federal crime of violence or when
the o ffender knows t hat a person to whom the instruction o r i nformation h as been gi ven
intends to use i t t o commit a federal crime of violence.
Passage stret c h e d over t hree Congresses, delayed i n p art b y First Amendment
concerns, but ultimately bolstered by submission of a J ustice Department report. The
report concluded t hat t errorist “cookbooks” were readily available– on the Internet and
el sewhere; that the i nformation had been and would continue t o b e u s ed for criminal
purposes; t hat ex i sting federal law p rovided i ncomplete coverage; and that a l egislative
fix would b e possible without offending Firs t Amendment free s peech principles. First
Amendment concerns centered o n t he S u p r eme C ourt’s Brandenburg decision which
comes with a requirement that any p roscri ption o f t he advocacy of crime must be limited
to cases where i ncitement is intended t o be and is likely t o be acted upon imminently.
Subsequent judicial developments have been thought to suggest greater flex ibility where
the advocacy takes t he form of instructing p articular individuals in the commission of
a s pecific o ffense.
C o m p l em ent ary federal offenses i n cl ude bans on instruction i n t he use of
ex plosives in furtherance o f a civil d isor d er and on providing material assistance to
terrorists and terrorist organizations. M oreover, federal l aw outlaws ai ding and abetting,
or conspiring to commit any federal crime, or soliciting another t o commit any federal
crime of v i o l e n c e . Bo mb-making i nstruction might be part and p arcel of aiding and
abetting, conspiring to commit, or soliciting t he commission of a number of underlyi ng
federal crimes i nvolving the misuse o f ex p losives o r weapons of mass destruction.
This report i s an abridged v ersion – without footnotes or appendix – of CRS Report
RL32074, Bombs On L i n e: Expl osi ves, F ree Speech, C ri mi nal L a w & t h e Int ernet .

Congressional Research Service ˜ The Library of Congress

I n t r o duction. W ithin hours o f t he tragedy i n Oklahoma C ity, t he recipe for
concocting a similar homem ade bomb had been posted on t he Internet . There followed
an outpour i n g o f ex p losives “cookbooks” and ot her “how to” m anuals of destruction.
This in turn triggered apprehension over h o w such potentially lethal information might
be used by hate groups and o t h e r terrorists as well as b y j uveniles with ex aggerated
fi recracker fasci n at i ons.
In response, Congress ultimately passed 1 8 U.S.C. 842(p)(2) which outlaws
instruction i n m aking or use of bombs (A) with the i ntent t hat t he information be used t o
commit a federal crime of violence or (B) with the knowledge t hat another i ntends to use
the i nformation t o commit a federal crime. This i s a brief ex amination of t he legi slation,
of the proces s t hat l ed to its enactment, of First Amendment i ssues raised during its
consideration, and of other related federal criminal laws that proscribe t he dissemination,
particularly by means of t he Internet , of des tructive i nformation.
Overview of Subsection 842(p). The elements of t he two crimes proscribed i n

18 U.S.C. 842(p) (2) might be parsed as follows:

I. It is unlawful for
(2) d em onst rat e o r
(3) distribute by any means i nformation pertaining i n whole
D. (1) an ex p losive or
(2) des tructive device or
(3) weapon of mass destruction
E. with the i ntent t hat
(1) t he t eachi n g, dem onst rat i o n o r i nform at i o n b e u sed
(b) i n furt h erance of
(2) an activity that constitutes a federal crime of
II. It i s u n l a w f u l f o r
(2) d em onst rat e o r
(3) distribute by any means i nformation pertaining i n whole
E. (1) an ex plosive or
(2) des tructive device or
(3) weapon of mass destruction
F. knowing s uch p erson i ntends
(1) t o u se t h e t eachi n g, dem onst rat i o n o r i nform at i o n

(b) i n furt h erance of
(2) an activity that constitutes a federal crime of
The s tatut e i m p o s es potential criminal liability on “any p erson,” that is, o n any
individual as wel l a s any nongovernmental, l egal entity. The prohibited t eaching,
dem onst rat i n g o r d i s t ri but i n g o f i nform at i o n m ay be accom p l i s hed b y m eans o t h er t h an
the Internet, but it seem s c l ear t h at Internet distribution i s covered. In other contex ts,
“distribution” has b een construed t o i nclude electronic d istribution (e.g., e-mail). P erhaps
more to the point, u se of the Internet as a means o f d istri b u t i o n w a s t h e focal point of
Congressional discussion thr o u ghout its legislative history. Although t he provision
ex plicitly refers to only t wo types of i nstructions – how to make or how to use ex plosives
and t he like, a court might conclude that the p rohibitions include instructions on where
and how to obtain t he necessary ingredients o r o n m ethods of escape following the
forbi dden u se. In any event , t h e o t h er el em en ts having been satisfied, s uch i nstructions
are likely t o b e p r o s e c u t able either as conspiracy, 1 8 U.S.C. 844(n), o r as aiding and
abetting, 18 U.S.C. 2, doctrines discussed bel ow.
The p rovisions borrow t he somewhat overl apping definitions of “ex plosives , ”
“destructive d evices,” and “weapons of mass destruction” from ex i sting l aw, 1 8 U.S.C.
842(p)(1). In doing so, t hey adopt the ex p ansions, contractions, and duplications found
there. The ex plosives definition, for i nstance, incl udes fire bombs. Des tructive devices
on the o ther hand are d efined to include ex plos ives and i ncendiaries but ex clude those t hat
are not design ed to be used a weapons. Destructive d evices ar e a l s o w e a pons of mass
destruction along with chemical, nuclear, and biological weapons.
An instructor or distributor can only b e p ro secuted under t he provisions if he either
(I) i ntends the i nstruction o r i nformation t o b e u sed for or in furtherance o f a federal crime
of violence or (II) knows t hat t he person to whom the i nstruction o r i nformation i s given
i n t ends i t t o be used for o r i n furt h erance of a federal cri m e of vi ol ence. A federal cri m e
of violence is one that (a) “has as an element the use, attempted use, or t hreat ened use of
physical force against the p erson o r p ropert y o f another,” o r (b) “is a felony and t hat, by
its nature, i nvolves a substantial risk t hat physical force against the p erson o r p roperty o f
another m ay be used in the course of committing t he offense,” 18 U.S.C. 16; see also,18
U.S.C. 924(c)(3).
Offenders are punishable by impri s onment for not more than 20 years, and fine o f
not more than $250,000 ($500,000 if the o ffense i s an o rganiz ation), 1 8 U.S.C. 844(a)(2);
3571. Anyone who conspires t o violate the provisions, or aids and a b ets a violation, is
subject to the sam e penalties.
Path to Passage. Passage did n o t co m e eas ily. Following the S enate hearings
in the 104th C ongress, the S en a t e a p p r o v e d a provision that focused o n t he problem of
In ternet bomb i nstruction as p art o f a compre h e n s i v e t errorism package, S.735 (104th
Cong.). Offered as an amendment b y S enator Feinstein, as passed b y t he Senate it would
It shal l b e unl awful for any p erson t o t each or dem onst rat e t he m aki n g of
ex plosive m at erials, or t o distribute by any means i nformation pert a i n i n g t o, in
w h o l e o r i n p art , t h e m anufact ure o f ex p l o sives m aterials, i f t he person intends o r

knows, that such ex plosive m aterials or informat i o n w i l l be used for, or in
furtherance of, an activity that constitutes a Federal criminal offense or a criminal
purpose affecting i nterstate commerce. §901, S.735, 141 Cong.Rec. S7875 (daily ed.
The provision, which would have m ade violations punishable by imprisonment for
up to twenty years, was not uniformly applauded. Beyond the reservations ex pressed o n
behalf of legitimate ex plosives manufact urers duri n g S enat e debat e, commentat ors
q uestioned t he provision’s constitutionality. The proposal, as amended, won S enat e
approval, 141 Cong.Rec. S7686 (daily ed. J une 5, 1995), but was d ropped from t he bill
that em erged from conferen ce in favor of a s tudy. M ore p reci sely, t he Antiterrorism an d
Effe c tive Death P enalty Act o f 1996 in its final form d id not outlaw Internet bomb-
making instructions b u t i n s t e ad called upon the Attorney General t o s tudy the conflict
between the First Amendment’s protection o f c o mmunication and the use of modern
technology for instruction i n t he criminal use o f ex p losives.
From that point on, Senate backers s ought a l egislative vehicle to ca rry to passage
their p roposal outlawing bomb-making inst ruction. Late r t h e same year, t he Senate
agreed to add i t t o t he defense authorization b ill, H.R. 3230 (104 t h C o n g . ), but again i t
was s tripped out during conference. In the first session of the 105th C ongress, the S enate
inserted it in the d efense authoriz ation bill for t hat year, H.R. 1211 (105th C ong.), only
to have it removed once m ore during conference. In the s econd session, it was apparently
added during S enat e J udici ary C ommittee m arkup to a House-passed private bill for t he
relief o f t he Kerr-McGee Corporation, H.R. 1211 (105th C ong.), which was p laced on the
S e n a te calendar without a written report but which s aw no further action. Suppor t e r s ’
efforts were bolstered by the J ustice Depar tment’s submission of a s tudy which endorsed
a m odified proposal.
In the 106th C ongress, the p roposal, m odified to reflect J u stice Departme n t
recommenda t i o n s , returned as p art o f t he Kerr-McGee private relief b ill, S.606 (106th
Cong.). It s ubsequently passed both Houses with little comment, and was s igned by t he
First Amendment Considerations. “Congress s hall make n o l aw . . . abridging
t h e f reedom of speech, o r o f t he press; or t h e r i ght of t h e p eopl e p eaceabl y t o a ssembl e,
and to petition t he Gover nment f or a r edress of grievances,” U.S.Const. Amend.I.
The First Amendment s peaks i n absolute t erms, but t here i s little dispute t hat
Congre s s may enact laws that regu late and even p rohibit s peech under s ome
ci r cum st ances. T he di ffi cul t y has al ways b een t o i d ent i fy t hose ci rcum s t ances wi t h
precision. This task has b een further complicat ed by t h e uni que ci rcum st ances present ed
by the Internet and by the array o f doctrines upon which t he Supreme C ourt might rely to
eval uate Fi rst Amendment compliance i n different fact ual s ettings .
Under t he current state o f t he law, it appears t hat C ongress m a y only regulate and
prohibit i nstruction o n t he means and methods of violence when the i nstructor i ntends the
lessons to be acted upon or knows t hat t hey will be with some level s pecificity.
Br andenburg v. Ohio, 395 U.S. 444 (1969), confirmed t hat t he constitutional
gu arant ees of free s peech and free p ress do not perm i t a S t a t e t o forbi d or proscri b e

advocacy of the u se of force o r o f l aw viola tion ex cept where such advocacy is directed
to inciting or producing imminent l awless action and is likely t o i ncite or produce s uch
Consistent with the sentiment that Brandenburg i s different when there i s
conspiracy, attempt, incitement or solicitation, the l ower federal courts have reject ed Fi rst
Amendment arguments grounded i n Brandenburg that involve instruction k n owingly
direct ed to the commission of a s peci fi c, concret e offense.
The DoJ Report s ummariz i ng its understanding of the s tate of the l aw as of 1997
seems t o reflect a like v iew: the C ourt h as developed t he Brandenburg t est , whi ch asks
w het her t he danger is intended, likel y and imminent. But t he protections of the F i r s t
Am endm ent d o not appl y when t he t eachi n g goes b eyond t h e t heory i t s el f t o ex p l anat i o n
of basic s trategy. At that point, t he teaching – if it is done with the purpose o f p reparing
a group for unlawful action – is not much different than the information conveyed in a
typical aiding and abetting case; accordingl y, the Brandenburg protections should l argely
be inapposite. The DoJ R eport concluded t hat “Senator Feinstei n ’ s proposal can
withstand constitution m uster i n m ost, if not all, of its possible applications , i f s u ch
legi slation i s slightly modified.”
Complementary P roh i b i t i ons. Federal l aw has for some time prohibited
instructing others i n t he use of ex plosives i n furtherance of a civil disturbance, 18 U.S.C.
231. More recently, C ongress h a s o u t l awed p roviding material support t o t errorists o r
terrorist organiz ations in language sweep ing enough t o i nclude support i n t he form of
instruct i o n or i nformation on how to make or use ex p l o si ves, dest ruct i v e d evi ces and
weapons of mass destruction, 18 U.S.C. 2339A, 2339B.
It i s al so a federal cri m e t o com m and or ai d and abet anot her i n t he com m i ssi on of
a federal offense, 1 8 U.S.C. 2, to conspire with another t o commit such an offense, 18
U.S.C. 371, or to solicit another t o commit a c r i m e o f violence, 18 U.S.C. 373.
In struction i n t he construction o r u se of ex pl osives may o ften occur under circumstances
where i t constitutes aiding or abetting, or conspiracy to commit, or solicitation t o commit
ot her federal cri m es o f v i o l ence.
In suc h c a s e s the government would b e required t o p rove both t he elements of
instigational offense (conspiracy, s olicitation, or ai ding/abetting) as well as at leas t s ome
elements of the underlyi ng offense. Thus in order t o aid and abet, one must “in s ome s ort
associ at e himsel f with the venture, participat e i n i t as i n s omet hing that he wishes to bring
about, [ and] seek by his action t o m ake i t s ucceed.” One m ay be gu ilty of commanding
or aiding and abetting any federal crime, i ncluding those i nvolving th e u n l aw f u l use of
fire or ex plosives . Liability requires t he commission of the crime by someone other t han
the d efendant. Although one who aids and abets n eed not participate i n all aspects o f t he
underlyi ng crime, h e m ust “participate at s ome s tage accompanied b y knowledge o f t he
result and i nt ent t o b ring about that result.” On t he other h and, mere presence or even
knowledge i s b y itself i nsufficient, the defendant must someh o w h a ve acted to make
cri m e ent erpri se succeed.
The criminal liability of a co-conspirator i s comparable. A co-conspirator m ay be
held vicariously liable for the reasonably foreseeable crimes committed i n furtherance of
t h e conspi racy. T he governm ent m u st est abl i s h an agreem ent b et ween t h e d efendant and

some other i ndividual t o commit a federal crime, an i ntent on t he part of the defendant
that the underlyi ng crime be committed, and d ep ending upon the s tatute perhaps an overt
act in furtherance of t he conspiracy committed by one of the conspirators.
In order t o est abl i s h t hat an accused h as com m i t t ed sol i ci t at i o n i n v i o l at i o n o f 1 8
U.S.C. 373, the p rosecution m ust s how (1) t hat h e i ntended t hat s omeone else commit a
vi ol ent federal cri m e, and (2) t hat h e i nduced or otherwise attempted t o p ersuade t he other
p e rs o n to commit the offense. In doing so, i t m ust present evidence that “s tro n gl y
corroborates” t he intent of the accused. Li ke conspiracy and unlike aiding and abetting,
the crime of solicitation does not r e q uire t hat t he underlyi ng offense h ave b een
Federal l aw cont ai ns a fai rl y w i d e range of statutes outlawing bombing, bomb t hreats
and o ther misconduct i nvolving ex plosives an d weapons of mass destruction which might
supply t he underlyi ng predicate o ffense for an ai ding and abetting, conspiracy, o r
solicitation charge bas ed on instructions in bomb construction or use. It i s, for ex ample,
a federal crime to bomb o r attempt t o bomb federal property, to possess a bom b i n an
ai rport, to use ex plosives t o commit any other federal fel ony, t o carry a bomb across s tate
l i nes with the i ntent t o i njure p erson o r p roperty, to bomb p roperty t hat i s p ar t o f o r i s
used in interstate commerce, or to s t eal ex p l osives from i nterstat e commerce or from a
There are also federal l aws covering materials capable of producing catastrophic
results. It i s, for ex ample, a federal crime to develop o r possess biological weapons, t o
develop o r possess chemical weapons, t o possess nuclear material without o f f i cial
authoriz ation, or to use weapons of mass destruction.
Of course, t here are s eparat e federal l aws t h at pros c r i b e m u r der and assaul t
committed against federal offici al s or forei gn dignitaries ; committed during t he course of
a b ank robbery or in violation o f civil righ ts; o r o ccurring in a host o f o ther jurisdictional
ci rcumstances , any of which could be, but need not be, committed t h r o u gh t he use of