Full opinion text
Statement of Reasons for Sentencing Pursuant to 18 U.S.C. § 3553(c)(2) JACK B. WEINSTEIN, Senior United States District Judge: Table of Contents I. INTRODUCTION... 209 A. Varying Degrees of Culpability of Child Pornography Offenders.., 209 B. Consistency in Sentencing.. .212 C. Defendant in Instant Case.., 212 II. FACTS AND PROCEDURAL HISTORY... 212 A. Background.. .212 B. Sexual History,.. 213 C. Child Pornography.. .214 D. Arrest.. .214 E. Mental Health Treatment.. .215 F. Administration for Children Services. . .216 G. Guilty Plea... 216 III. EXPERTS... 217 A. Medical.. .217 1. Credentials.. .217 2. Methodology and Diagnosis.. .218 3. Findings.. .218 a. Transition to Child Pornography. . .218 b. No Physical Threat to Children. . .220 c. Recidivism Risk.. .221 4. Recommendation for Sentence. . .222 B. Social Worker... 223 C. Family. ..224 IV. SENTENCE IMPOSED... 224 V. SENTENCING CONTEXT... 224 A. Shifting Societal Norms.. .224 B. Changing Technological Land- scape. . .225 1. Personal • Computer Revolu- tion. . .225 2. Internet Revolution.. .226 a. Broadband Revolution.. .228 b. Rise of Mobile Connectivity.. .229 c. Rise of Social Media.. .230 d. Emergence of the Cloud... 231 C. How Internet Revolution Enabled Child Pornography Consumption.. .231 D. Connection between Child Pornography Consumers and Child Molesters. . .237 E. Child Pornography’s Continued Harm to Children.. .241 F. Effects of Excessive Punishment on Defendants and Families.. .242 VI. SENTENCING LAW.. .249 A. Discretion of Sentencing Judge in Determining Appropriate Punishment. , .249 B. Applicable Statute.. .249 C. Advisory, Nature of the Sentencing Guidelines., .250 1. Section 3553(a) Factors.. .250 2. Departures Based on Section 3553(b)(2) Factors.. .251 3. Departures Based on Disagreement with Commission Policy.. .252 4. Departures: Statement of Reasons Required.. .252 D. Restitution.. .253 VII. APPLICATION OF LAW TO FACTS... 254 A. Guidelines Sentencing Range.. .254 B. Analysis of Section 3553(a) Factors.., 254 1. Nature and Circumstances of Offense; History and Characteristics of Defendant.. .254 2. Purposes of Sentencing.. .255 3. Kinds of Sentences Available.. .258 4. Guidelines, Policy,- and Other Criteria of Sentencing Commission... 258 5. Unwarranted Sentence Disparities...260 a. Increased below-Guidelines sentences in non-production cases.. .260 b. Increased non-prison sentences in possession-only cases... 264 6. Restitution.. .265 C. Policy Considerations.. .265 VIII. CONCLUSION... 267 I. Introduction A. Varying Degrees of Culpability of Child Pornography Offenders This adult defendant viewed child pornography in his home on his computer. He also participated in electronic “chat room” sexual conversations with minor females. His sentencing demands consideration of the manifold relevant differences among child pornography offenders. .Under the federal criminal code, child pornography viewing through computers is a serious felony. The theory is that (1) computer depiction of children being sexually exploited creates a permanent widespread record of abuse, perpetuating and potentially exacerbating the harm initially suffered by the victim in the production, and (2) acquisition of these images encourages abuse of children in their production since viewers create demand. Prosecution under the current sentencing framework has largely failed to distinguish among child pornography offenders with differing levels of culpability and danger to the community. The applicable structure does not adequately balance the need to protect the public, and juveniles-in particular, against the need to avoid excessive punishment, with resulting unnecessary cost to defendants’ families and the community, and the needless destruction of defendants’ lives. One of the foundational rules of our criminal justice system is that punishment should be commensurate with the crime— its threat to society. The need to tailor sentences to the dangers and needs of the individual being sentenced (and his family and community) are also foundational. Proportionality in sentencing encourages a fair system. Increasingly, judges, prosecutors, advocates and concerned citizens have recognized that the current sentencing approach to child pornography offenders is often unfair, unreasonable, cruel, and conceptually deficient. Child pornography offenders can be broadly divided into two main categories: those who produce child pornography and those who are viewers of child pornography. By definition, producers of child pornography are child molesters, frequently representing the worst and most dangerous type of offender. Non-production offenders, by contrast, encompass a wide range of individuals with varying degrees of culpability. They include occasional viewers with no particular sexual interest in children as compared to adults; viewers with pedophilic tendencies who are aroused by images of minors but do not possess the intent or capacity to engage in any sexual contact with a minor; users of peer-to-peer files who passively and unintentionally distribute child pornography received on their computers; viewers who intentionally engage in the trafficking of child pornography for economic or psychic gain; and viewers who have, intend to, or are likely to, engage in sexual contact with a minor — ie., actual or potential child molesters. Child pornography viewing is played out against a primal parental fear of pedophiles harming their children. While there is a degree of overlap between child pornography viewers and child molesters, most non-production child pornography offenders — and particularly the one now before the court for sentencing — show no mens rea suggesting the likelihood of future harm to children. The Internet revolution has vastly increased the availability and accessibility of child pornography online, greatly expanding the category of people arrested for possession and distribution offenses involving explicit sexual images of minors obtained through home computers using various peer-to peer file sharing programs. As a result there has been an enormous increase in this criminal class, governmental resources used to ferret out its members, criminal prosecutions, and incarcerations. Prosecutions and sentencing should differentiate among offenders’ varying degrees of culpability. Failure to distinguish among the multitude of vectors involved in a sentencing decision is particularly grave in the field of child pornography offenses. To be adjudicated guilty necessarily results in denomination as a sex offender; automatically provided is a lifetime of continuous punishment — being marked as a pariah with severe restrictions on residence, movements, activities and associations. Adding unnecessary, unduly long, periods of incarceration is inappropriate and it should be avoided. In order to deliver reasonable sentences for child pornography offenses, a detailed recategorization and typology of offenders is warranted. The divisions below offer a tentative illustration of one possible taxonomy. Each category implies different mental states, which need to be considered when tailoring appropriate punishment and measures for control. • Possession-only child pornography users: This category includes those viewers and consumers of child pornography who download images of child pornography. It frequently includes individuals with the lowest degree of culpability. Often, defendants in this category do not have the mens rea threatening actual contact with a minor. • Possession and involuntary distribution: This category comprises those individuals who possess child pornography they downloaded and are deemed to have engaged in distribution due to the nature of the technology used for downloading the images. The individuals in this category may not intend to distribute child pornography. For example, this category would include child pornography users who download images via peer-to-peer file sharing sites which may render files automatically accessible to others. • Possession with intentional distribution: This category comprises those individuals who possess and intentionally distribute child pornography to other users, but not for commercial gain. Offenders in this category display a higher degree of culpability; the trade and exchange of such images significantly contributes to the child pornography market, perpetuating the severe harm suffered by children in production. • Possession with intentional distribution for commercial gain: This category encompasses individuals who profit from the trade in child pornography. This conduct is extremely serious. It not only contributes to the existence of the market, but defendants in this category tend to be driven by unchecked pecuniary concerns rather than a mental illness amenable to curative medical treatment. • Online communications with minors without intent to engage in contact: This category includes those child pornography users who view child pornography while concurrently engaging in online communications with minors, without the intention, or with little or no likelihood, to engage in any physical contact with them. The adverse effect on the child of such inappropriate conduct may be serious. • Online communications with minors intending to engage in contact: This category represents individuals with a high degree of culpability. They possess the mens rea that is likely to lead to actual contact with minors. Individuals falling within this category represent a serious risk to the public. The contact ranges from talk to coitus. • Production of child pornography: Defendants in this category engaged, and are most likely to engage in the future, in the sexual exploitation of a minor. This group potentially constitutes a most serious and dangerous category of child pornography offenders. Defendants in this category can be further differentiated based on factors such as the type of images produced, the quantity, and their role in the production. Some involve photographing rapes of young children by a parent and other relatives or friends of the family. Such incestuous relationships are particularly hard to ferret out. While the current Guidelines for child pornography offenses appear to recognize most of these broad categories, several of the Commission’s relevant sentencing enhancements tend to apply indiscriminately to all child pornography offenders, greatly increasing the recommended punishment range without necessarily reflecting an individual’s heightened level of culpability. See U.S. Sentencing Comm’n, Federal Child Pornography Offenses (Dec.2012), at 320-21 (recognizing that “[t]he current sentencing scheme ... places a disproportionate emphasis on outmoded measures of culpability regarding offenders’ collections,” and recommending that the Guidelines be revised to “more fully account” for: the content of an offender’s child pornography collection and nature of his collecting behavior; the degree of the offender’s involvement with child pornography communities; and an offender’s history of “sexually dangerous behavior”). B. Consistency in Sentencing This court has been attempting to rationalize its own sentences by establishing general criteria for ‘similar’ cases, a project required by the wide discretion in sentencing afforded under Booker. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Chin Chong, 13-CR-570, 2014 WL 4773978 (E.D.N.Y. Sept. 24, 2014) (accounting for prospect of deportation when imposing a term of incarceration); United States v. Sarpong, 14-CR-242, 2014 WL 5363775, at *2 (E.D.N.Y. Oct. 21, 2014) (same); United States v. Palagnachy, 14-CR-0184, 2014 WL 6606668, at *2 (E.D.N.Y. Nov. 19, 2014) (same); United States v. Florez Parra, 14-CR-332, 2015 WL 105885, at *2 (E.D.N.Y. Jan. 7, 2015) (same); see also United States v. Bannister, 786 F.Supp.2d 617, 688 (E.D.N.Y.2011) (sentencing nine defendants together for internal consistency and reassurance to community); United States v. C.R., 972 F.Supp.2d 457, 459 (E.D.N.Y.2013) (problems with enforcing statutory mínimums); United States v. D.M., 942 F.Supp.2d 327 (E.D.N.Y.2013) (sentencing defendant who pled guilty to one count of possession of child pornography to five years’ probation); United States v. G.L., 305 F.R.D. 47 (E.D.N.Y.2015) (“With the increase in sentencing discretion and concern over unnecessarily long incarcerations has come an increased need for each judge to try to avoid inconsistency in his or her own sentences. Stating reasons for sentencing in memoranda helps minimize both dangers.”). C. Defendant in Instant Case Defendant R.V., a loving father of two adult children and three school-age children, pled guilty to one count of a five-count indictment for possession of child pornography. Over a period of about one year, defendant downloaded child pornography in the privacy of his home without the knowledge of his wife or children. Defendant also engaged in video chats with minor females. No evidence was presented of defendant ever having had' inappropriate physical sexual contact with a minor. Expert testimony demonstrated that defendant poses no further danger to his or other children. In light of his children’s and spouse’s demonstrated need for his presence at home, imposed was a sentence of time-served of five days, and seven years of strict supervised release with medical treatment. Levied was: a fine of $12,500; $2,000 in victim’s restitution; and a $100 special assessment. II. Facts and Procedural History The parties stipulated that the defendant should be referred to as “R.V.” to enhance rehabilitation and reduce adverse impact on the family. See Hr’g Tr., Apr. 30, 2015 (“Sent.Hr’g”) at 27:17-28:1. A. Background R.V., age 52, is a United States citizen and resident of Brooklyn, New York. Pre-sentence Investigation Report, Oct. 17, 2014 (“PSR”), at 2. Born in Puerto Rico, he grew up in humble circumstances. His father was a farmer; his mother, a homemaker. Id. at ¶ 39. Though most of his fourteen siblings were already grown up and living out of the home when R.V. was a child, he shares close relationships with his surviving eleven brothers and sisters who live in North Carolina. Id. at ¶ 40. At age three or four, R.V. and his family immigrated to New York. Richard B. Krueger, Psychiatric and Risk Assessment (“Krueger Letter”), at 1. They relied on public assistance. Id. at 2. By ninth grade, R.V. had dropped out of school in order to work to help support the family. PSR at ¶ 52.' When he was eighteen, defendant married his first wife; they divorced after one year. Id. at ¶ 41. At age eighteen, defendant began to use marijuana. Krueger Letter at 2. He subsequently moved to cocaine and then to heroin. Id. He entered an inpatient treatment program, but relapsed. Id. at ¶ 51. In 1991, at age 29, R.V. pled guilty to charges of attempting to sell cocaine. Id. at ¶¶ 31-32. He entered a drug treatment program and was released on parole. Id. at ¶ 61; Krueger Letter at 3. After a positive 'urine test for controlled substances, he was incarcerated for violation of parole,'during'which time he completed another drug treatment program. PSR at ¶ 51; Krueger Letter at 3. Following his release, R.V. was transferred to a Phoenix House inpatient treatment program for three months where he successfully completed another drug treatment program. PSR at ¶ 51. He reports that he has been sober since May 1, 1995; over 20 years. Id. at ¶ 50; Krueger Letter at 3. In 2000, at age 38, the defendant married his current wife, then age 21. PSR at ¶ 9; Krueger Letter at 3. The couple subsequently had three children: a son (age 15), a daughter (age 12), and a daughter (age 10). PSR at ¶42. His son, after homeschooling, recently enrolled in public school; his two young daughters remain homeschooled by defendant’s wife, who holds a college degree. Id.-, Krueger Letter at 5. Defendant refers to his marriage as “great.” Krueger Letter at 5. His wife describes him as a wonderful husband and father, who cooks for the family almost every night. PSR at ¶ 44. Defendant also has two adult daughters (ages.24 and 26) from a previous unmarried relationship; they live in upstate New York. Id. at ¶ 43. Following his arrest in the instant case, defendant was required to live separately from his family. Id. at IT 45; Krueger Letter at 3. He was permitted to return home after completion of an investigation by the New York Administration for Children Services (“ACS”). ACS found that none of R.V.’s children had been abused by him. PSR at ¶ 45. Both of R.V.’s parents died from health-related problems. Id. at ¶ 39. • Each of his surviving eleven siblings-is gainfully employed and enjoys good health. Id. at ¶ 40. Each maintains a close relationship with R.V. and continues to remain supportive following his arrest. Id. . . R.V. has worked in a variety of restaurants: as an assistant manager of a restaurant chain’s warehouse; and, for the last five years, as a production manager of another restaurant chain, where he supervised approximately 20 people and earned some $75,000' a year. His employment was terminated upon his arrest in the instant case. Id. at ¶¶ 54-55; Krueger Letter at 1. At the time of sentencing, he was employed by a bakery in Long Island City. Hr’g Tr., Apr. 1, 2015, at 16:20-17:2. B. Sexual History Defendant’s first “crush” occurred at age 15, on a 15-year-old female. Krueger Letter ,at 5. He went on his first “date”-at age 18 with an 18-year-old female. Id. His first non-genital touching, or petting, occurred at age 19 with a 19-year-old female. Id. Defendant’s first genital sexual encounter occurred at, age 19 with the mother, also then 19 years old,, of his oldest two children. Id. R.V. has had three sexual partners — the mother of his oldest two children, his first wife, and his current wife. Id. He reported in a June 2014 medical interview that his last ten masturbatory fantasies involved adult women. Id. He reports that his sexual relationship with his current wife is satisfactory, but at times his wife is tired and not interested in sexual intercourse when he is. Id. at 3. The defendant has viewed adult pornography intermittently for many years on his home computer in private, downloading and masturbating to such images. Id. at 3-4. For the year prior to his arrest, he viewed and masturbated to images and videos on his computer of girls aged 11 to 12 years old. PSR at ¶¶ 5-7. C. Child Pornography Defendant admitted to agents from the Department of Homeland Security, who executed a search warrant of his home, that he used peer-to-peer electronic file-sharing software to search, obtain, and view child pornography. Id. at ¶ 7. After viewing the images or videos, he would either delete the files from his computer or he would move them to “free space” on his computer. Id. He used peer-to-peer software to engage in video conversations with minor females using web applications “KiK” and “Ares.” Id. at ¶ 8. In “chat rooms,” he posed as a teenage boy between the ages of 14 to 17 to engage girls in a “sexual manner.” Id. He also admitted to occasionally watching and recording chat rooms in which minor females were performing sexual acts. Id. On December 20, 2013, a Homeland Security Investigations agent, engaged in an ongoing investigation, connected to R.V.’s home computer. Id. at ¶ 5. The agent downloaded four files: • a photograph depicting an adult male engaging in a sexual act with a five-year-old girl; • a one minute and seventeen second video depicting an adult male engaging in a sexual act with a three-year-old girl; • a twenty-four second video depicting two nude twelve-year-old girls touching an adult male’s penis and each other; and • a three minute and twenty-four second video depicting an adult male engaging in a sexual act with a prepubescent girl. Id. On May 1, 2014, agents from the Department of Homeland Security, executing a search warrant at R.V.’s home, located three separate thumb drives that defendant admitted belonged to him. Id. at ¶¶ 6-7. Most of the files found on the thumb drives were password protected, but agents were able to recover nine images and twenty-two videos depicting child pornography. Id. D. Arrest On May 2, 2014, R.V. was arrested for possession of child pornography. R.V.’s three youngest children and his wife were all residing at their home when he was arrested. Id. at ¶ 9. He was in jail for five days before he was released on bail. Order of Detention, May 2, 2014, EOF No. 3; Order Setting Conditions of Release, May 7, 2014, ECF No. 8 (sealed). Charged was that, on May 2, 2014, R.V. knowingly and intentionally possessed images of child pornography that were mailed, shipped, or transported in interstate or foreign commerce. See 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2). E. Mental Health Treatment After release on bail R.V. was treated by Mustard Seed Forensic Social Work Services (“Mustard Seed”), which provides sex offenders with treatments aimed at “the reduction of deviant sexual behavior and recidivism.” Mustard Seed Forensic Licensed Clinical Social Work Services, P.C., http://www.mustardseedforensic.com/ msmission.html. Since its inception, Mustard Seed has treated over 3,000 sex offenders. Mustard Seed Client Compliance Report, Ct. Ex. 2, April 1, 2015, at 1. Provided to the court was a report by William C. Ford, a licensed clinical social worker and executive director and co-founder of Mustard Seed. M; Credentials of William C. Ford, Ct. Ex. 3, Apr. 1, 2015. Dr. Ford is a member of the National Association of Social Workers and the Association for the Advancement of Social Work with Groups; a board member of Stop It Now!, a “national organization dedicated to ending child abuse;” and former member of the New York City Department of Probation’s Domestic Violence and Sexual Assault Task Force. Credentials of William C. Ford, Ct. Ex. 3, Apr. 1, 2015. During Dr. Ford’s fifteen-year professional career, he has treated approximately 3,500 sex offenders. Id. Dr. Ford spoke directly about R.V.’s participation in treatment and his potential for relapse. Recidivism was unlikely if adequate medical treatment was afforded: [R.V.] has been a willing and open participant in treatment thus far. He has played an active role in his own relapse prevention planning and has taken only assertive actions to address the steps he took to commit the instant offense. He has been willing to take an active role in his self-disclosure regarding all aspects of his sexual behavior. When asked what his expectation of treatment was he simply stated that he would like to develop the skills needed to remain relapse free and to no longer succumb to desires that would lead to him engaging in criminal or sexually deviant behavior. Based upon his personal assessment regarding his motivation to participate in treatment, this immediate treatment goal was identified. [R.V.] would like to identify and- correct the root causes of his involvement in the sexual offehse. We believe that [R.V.] has thus far benefited from his time in treatment. ■ He has taken advantage of this opportunity to address his behavior and has become far more focused on his personal risk factors. Based on [R.V.’s] commitment to treatment and his ability to work on improving his recognition of his personal high risk factors he appears capable [of] maintaining non-relapse behavior. The prognosis for non-recidivism, thus far, appears to be good. Mustard Seed Client Compliance Report, April 1, 2015, Ct. Ex. 2, at 3 (emphasis added). Emphasized was that R.V. was actively engaging in treatment: [R.V.] has engaged actively to improve his level of awareness and insight regarding the steps he took to engage in a sexually deviant act as well as to improve his recognition of his actions and to heighten his awareness of the impact of his actions. [R.V.] has begun to exhibit recognition as to how his actions may be perceived and he agrees with this perception. He openly identifies that his actions could cause long term damage to any female subjected to exploitation via child porn. He has since refrained from any behavior that may be perceived as criminal or harmful.... [R.V.] presents himself as an easily approached and willingly engaged individual who has lived an active and vibrant life to date. He was easily engaged in discussions regarding the instant offense as well as all areas of his sexual life. Based upon his responses during sessions [R.V.] appears [to have] improve[d] his insight and judgment regarding what constitutes sexually deviant-behavior as well as its impact on its victims. [R.V.] maintains that he does not currently, and has not since his arrest, engage[d] in sexually deviant behavior. ■ We remain convinced that early intervention with individuals involved in sexually inappropriate behavior at this level serves as an excellent deterrent'to any progression of sexually deviant behavior and can result in long term relapse prevention as well as rehabilitation of the individual involved in treatment. Therefore we believe that [R.V.], if given the chance to, can benefit from community based treatment to address his involvement in the commission of a sexually deviant act. - - Id. (emphasis added). F. Administration for Children Services After R.V.’s arrest, ACS filed an Article 10 petition in the Kings County Family Court to protect his children; it opened an investigation into whether R.V. had abused them • or posed a danger to them. See Sent. Mem., April 9, 2015,- ECF No. 43 (sealed),- at 1-2, Ex. A, ACS found no evidence of abuse; R.V. was permitted to return home to reside with- his family on August 29, 2014. PSR at ¶ 11; Sent. Mem., April 9, 2015, ECF No. 43 (sealed), at 1, Ex. D; Hr’g Tr., Apr. 1, 2015, 94:18-20. The record from the Family Court was admitted in evidence under seal. See Sent. Mem., April 9, 2015, ECF No. 43 (sealed). There have, .been no reported violations; the petition was dismissed by the Family Court on May 6, 2015, Letter update as to [R.V.], June 10, 2015, ECF No. 51 (sealed). Beginning with his initial release from custody on May 7, 2014 until sentencing on April 30, 2015, Pre-Trial Services closely monitored defendant. See Order Setting Conditions of Release, May 7, 2014; ECF No. 8 (sealed). The conditions of supervision included the following: defendant must remain within New York City; he must avoid areas where minors under the age of 18 tend to congregate, including but not limited to, parks, playgrounds, fast food restaurants near schools and arcades; he must undergo mental health evaluation and treatment as needed for the specific offense charged; and he must refrain from using a computer or accessing the Internet, except as may be necessary for employment purposes only. Id. G. Guilty Plea On August 26, 2014, defendant appeared before a magistrate judge and pled guilty to one count of a five-count indictment. See Hr’g Tr., Aug. 26, 2014, ECF No. 29, at 23:22-24:2. Specifically, defendant pled guilty to. possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B), which provides as follows: Any person who ... knowingly possesses, or knowingly accesses with intent to view, 1 or more books, magazines, periodicals, films, video tapes, or other matter which contain any visual depiction that has been mailed or has been shipped or transported using any means or facility of interstate or foreign commerce ... by any means including by computer if the producing of such visual depiction involves the use of a minor ' engaging in sexually explicit conduct and such visual depiction is of such conduct. 18 U.S.C. § 2252(a)(4)(B) (2012). The maximum term of imprisonment for this crime is twenty years. See 18 U.S.C, § 2252(b)(2) (2012) (minors under 12 years old). There is no minimum sentence. Defendant raised no constitutional or other challenge to the procedures by which the evidence was obtained. See generally Hr’g Tr., Aug. 26, 2014, ECF No. 29. It was explained to defendant that a mandatory supervised release term of five years was applicable. Id. at 13:9-12. He understood that he would be treated as a sexual offender under state and federal law with serious adverse long term collateral consequences. Id. at 18:25-19:7. III. Experts Evidentiary sentencing hearings were conducted on April 1 and April 30, 2015. See ECF Nos. 48-49. A. Medical Dr. Richard B. Krueger, a psychiatrist who specializes in paraphilic disorders, evaluated the defendant in a four-hour interview on June 23, 2014. Hr’g Tr., Apr. 1, 2015, at 38:16-41:23. He took a detailed history of defendant’s personal and family background, which included a stable upbringing, some financial struggles, and substance abuse. Id. at 42:12-43:3, 44:18-45:4; see generally Krueger Letter. Dr. Krueger wrote an expert report and testified twice. See generally Krueger Letter; Hr’g Tr., Apr. 1, 2015; Sent. Hr’g. He also reviewed a list of materials that this court advised it was considering in sentencing. See Order, April 29, 2015, ECF No. 46; Sent. Hr’g, at 15:19-21,19:7-14. Dr. Krueger suggested that the court consider three additional sources: Martin P. Kafka, Hypersexual Disorder: A Proposed Diagnosis of DSM-V, 39 Archives of Sexual Behavior 377-400 (2010) (discussing the proposed revision of the DSM-V to include hypersexual disorder); Meg S. Kaplan & Richard B; Krueger, Diagnosis, Assessment, and Treatment of Hypersexu-ality, 47 Journal of Sex Research 181 (2010) (discussing the current standard for diagnosis, assessment, and treatment of hypersexual disorder); Richard B. Krueger, Meg S. Kaplan & Michael B. First, Sexual and Other Axis I Diagnoses of 60 Males Arrested for Crimes Against Children Involving the Internet, 14 CNS Spec-trüms 623 (2009) (discussing the newly suggested category of hypersexual disorder as the sexual diagnoses óf 60 males arrested for possession of child pornography obtained via the Internet or attempting to meet a child over the Internet). Sent. Hr’g, at 19:11-20:5. 1. Credentials Dr. Krueger graduated from Harvard Medical School in 1977. Hr’g Tr., Apr, 1, 2015, at 38:20-21. His experience in assessing paraphilic disorders began in the mid-1980’s, while working at the Massachusetts Treatment Center in the Bridge-water Correctional Complex, where he assessed approximately one hundred individuals civilly committed for sexual violence. Id. at 39:9-15. For the past twenty years, he has served as the medical director of the Sexual Behavior Clinic at New York Psychiatric Institute in New York City. Id. at 39:20-22. As director, he runs the psychobehavior clinic, which assesses juv.enile sex offenders. Id. at 40:3-7. He also is a consultant to the New York State Office of Mental Health, where he assesses and treats sex offenders. Id. at 40:8-13. The doctor is currently engaged in helping rewrite the Paraphilic Disorder chapter in the Diagnostic and Statistical Manual. Id. at 40:14-21. On several occasions Dr. Krueger has been qualified as an expert on paraphilic disorders in the' United States District Court for the Eastern District of New York. Id. at 41:17-23. He has testified on the risk assessment of sex offenders and the treatment of individuals with paraphilic disorders. Id. , 2. Methodology and Diagnosis Dr. Krueger performed twenty-one tests to assess defendant’s mental condition and sexual tendencies. Krueger Letter at 6-9. These tests were designed to explore pedo-philic tendencies, other sexual interests, repulsions and attractions, mental illness, and risk assessment for sexual recidivism and sexual violence. Id. The majority of the tests indicated that defendant: • “[D]id not make use of [rapist] cogni-tions.” Id. at 7, ¶ 5; • “[D]id not make use of [pedophilic] cognitions.” Id. at 7, ¶ 6; • Was not “compulsive” in his use of pornography. Id. at 7, ¶ 7. • Is at “low ... - risk of recidivism ...” Id. at 11. • “[N]ever abused a child in a hands on way.” Id. • “[I]s at low risk to his children ...” Id. The tests indicated that defendant’s risk of sexually abusing his own children was “low” or “extremely low.” Id. at 12; see also Hr’g Tr., Apr. 1, 2015, at 46:22-24 (“I applied a number of risk assessment instruments and these were low — his scores on these were lower, extremely low on these five instruments.”). Dr. Krueger also testified that the risk of R.V. abusing children other than his own was “remote.” Id. at 47:10-14. In sum, Dr. Krueger provided the following diagnoses concerning the defendant: Axis I: 1.... Pedophilia, with an interest in images of children only 2. Opiate dependence with sustained remission in an uncontrolled environment 3. Cocaine dependence with sustained remission in an uncontrolled environment Axis II: No diagnosis Axis III: 1. Elevated cholesterol Axis TV: Stressors — severe—current legal situation Axis V: Highest level of functioning past year was 90 Highest level of functioning past week was 60 Krueger Letter at 11. 3. Findings a. Transition to Child Pornography Dr. Krueger testified to the defendant’s transition from viewing adult pornography to child pornography, and the further progression to engaging in online chats with underage girls: THE COURT: When did he start looking at [pornography]? THE WITNESS: ... I didn’t give a specific time. He said that he had looked at it on and off for many years, and that ... he would download it, masturbate to it, but that it was only within the past year that he had looked [at] child pornography. He stumbled on it and began viewing it. Hr’g Tr., Apr. 1, 2015, at 47:21-48:3. This expert also testified that, about the same time, defendant began chatting online with underage girls: THE COURT: He started having chats with underage children — girls, I assume? THE WITNESS: Yes. THE COURT: When? THE WITNESS: Around that time. THE COURT: A year before? THE WITNESS: Yes, around — coincident with his interest in his use of child pornography. THE COURT: And what brought on this change in his lifestyle? THE WITNESS: He just said he stumbled onto it and began using it. I would say this is not an infrequent— it’s a strange — to’try to establish how somebody develops a sexual interest pattern is — the explanation is in its infancy really. But he — basically, this is not an unusual history for many who have looked at child pornography. You get elderly men who for many years have had sexual relationships and/or looked at pornography, and then for some reason, they’ll migrate into this and — as opposed to getting out of it, will continue with it, and this was his pattern. THE COURT: You have no opinion on what caused this sexual reversion, if that’s the, proper word? THE WITNESS: No, aside from shifting into it and finding — becoming interested in it to the point that he would masturbate, no opinion — no opinion as to what caused it. THE COURT: But I don’t understand the connection between that and his chatting with women? THE WITNESS: Well, he — one could say that he — if he’s interested in images of minor females, prepubescent females, he indicated that he posed I think as a teenager and began engaging in chats with minor females. This would be, I would say, an extension of his interest involving — of his interest — vesicatory interest in minor females, he presumably would find it sexually titillating or interesting to be another facet of that interest pattern. THE COURT: Is that a normal progression for these people who — is that a normal progression from child pornography through computers into chats with young women? THE WITNESS: I would say it’s one progression. It’s — you can find individuals who have — will just stick with images and that’s it, alone. You’ll have some individuals who will move to chatting and stop at that. You’ll have other individuals that will look at pornography and go to chatting and then actually try to meet or actually abuse one. THE COURT: What is the percentage of those who go from pornography, child pornography, who as you say, have drifted into it, into chats with young ladies — young women, I should say, young females, I guess? THE WITNESS: Offhand, I don’t know. I would say it would be a relatively small proportion, but I don’t have specific numbers. THE COURT: And what proportion of that proportion drifts into physical relationships, not necessarily sexual? THE WITNESS: Well, again, I think that it would be relatively small. I mean, I think of the — let me just think. This would be basically a question — some questions for literature review — but to my best knowledge, individuals who are arrested for child pornography, a relatively small portion of them will have additional charges involving — additional prior charges involving abuse of minors, relatively small portion. Id. at 48:17-51:5 (emphasis added). Dr. Krueger testified that defendant’s transition to watching child pornography “is not an unusual pattern.” Id. at 80:22-23. He explained: I have evaluated on the order of 350 individuals involved with child pornography ór psychosexual interaction. Most[ly] all of them are male. And in a substantial portion of cases, individuals have had, you know, by all external appearances, they’re doing fine, and this is the index of their first crime. And they — a substantial portion have been elderly men — thirties, forties, fifties, sixties — that just become taken by it. Id. at 80:23-81:5. The internet age increased the volume and accessibility of child pornography: THE WITNESS: I mean, there’s been much written about this. You have pornography. Where is pornography viewed at? It’s viewed in the privacy of one’s home. So you can instantly get it. You can sort of do it privately. You can think of doing it. Nobody’s really looking at it. So the situation for looking at pornography is secretive and it’s very accessible. And you know, that’s how — I mean, we’re getting all sorts of cases of individuals that sort of zero in on pornography and the most bizarre things you can possibly imagine, but they do it, you know, privately, so to speak. THE COURT: Is that partially due to the availability on the internet— THE WITNESS: Yes. THE COURT: —within privacy, which I take it is a relatively recent innovation? THE WITNESS: Absolutely. And the whole evolution of pornography on the internet is a relatively recent thing. There have been' increasing amounts written as to how pervasive it is and extensive it is, and there’s a vast myriad of pornography. People think that they are looking at it and nobody’s looking at them. THE COURT: So it increased from the period, I suppose, when you would have to look at cards or photographs and go out and get them? THE WITNESS: Yes. I mean, there used to be you had print pornography of all sorts everywhere. And I think there’s been a discussion that since with the advent of the sort of video camera and then online, there’s beén an incredible explosion of child pornography-well, of pornography and ■ child pornography, people being arrested for child pornography. This is a function of the sort of the internet age. Id. at 83:18-85:1. According to Dr. Krueger, such easy access and increased availability of child pornography online could also affect the deterrent value of heavy sentences: THE COURT: Well, from a medical point of view, given the general circumstances of availability and perhaps desire in the general population, do the deterrent effects of heavy sentences have an impact of any substantial nature on the number of people who will be violating this law? ... THE WITNESS: Well, I would say that the deterrent effect is minimized by virtue of the mechanics of the internet, that basically people are in their home, alone, kind of thinking they’re private — privacy and they click and they, you know, they feel somewhat uncomfortable, but it’s not like they— it’s -just so easy to do, so easy to do that. I’m not sure that the deterrent effect is affecting such behavior. Id. at 91:20-92:10. ' b. No Physical Threat to Children The expert noted there was no evidence that defendant had engaged in hands-on abuse of any child: [R.V.’s] acquisition of child pornography appears to have occurred over a relatively brief period of time. It also appears that his predominate sexual preference has been for adult females. There is no indication that he has ever tried to meet or abuse a minor and his risk of doing so is low or extremely low according to 5 instruments used to assess such risk. Krueger Letter at 12 (emphasis added). Specifically, Dr, Krueger indicated that: [T]here was no indication that [R.V.] had even attempted or fantasized about his children or that he had abused his children, and in my opinion, he could live with his children without placing his children at risk .... I applied a number of risk assessment instruments and these were low — his scores on these were lower, extremely low on these five instruments. Hr’g Tr., Apr. 1, 2015, at 46:18-24 (emphasis added); see also Krueger Letter at 11. With a “reasonable degree of medical certainty,” the defendant could live at home without posing a danger to his children. Hr’g Tr., Apr. 1, 2015, at 54:24-25. [COUNSEL]: Dr. Krueger, in your expert medical opinion is [R.V.] a danger to his children? [THE WITNESS]: He is not a danger to his children. Id. at 63:16-63:18 (emphasis added); see also id. at 55:7-11. The expert also testified that R.V. is not a threat to other children: [COUNSEL]: In your éxpert medical opinion, do you believe that [R.V.] is a danger to other children? [THE WITNESS]: [I]n my opinion, he is not a danger to other children. Id. at 63:19-22 (emphasis added); see also id. at 47:10-14. c. Recidivism Risk The expert testified that- in most cases involving viewers of child pornography the recidivism rate is low. Id. at 53:11-17. In this expert s' opinion, this conclusion applied to defendant R.V. Id. at 53:19-21. As noted above, Dr. Krueger’s tests showed that defendant’s risk of sexual violence and re-offense, was “low” . or “extremely low.” Krueger Letter at 12; Hr’g Tr., April 1, 2015, at 46:22-24. Moreover, according to Dr. Krueger, R.V.’s recidivism risk would decrease further if he were allowed to continue treatment under federal supervision as part of a non-custodial sentence: [COUNSEL:] So in 95 to 97 percent of cases, once someone is arrested for child pornography, they don’t go back to looking at it? - [THE, WITNESS:]' I would say'ballpark. I mean, again, there are some meta-analyses and other things. I didn’t review them immediately before this, but,they are on that order. I would say the rate of recidivism, depending o'n the length of time, is on the order of three to five percent. THE COURT: And is that applicable to this defendant? THE WITNESS: Yes. I would say that many of tho’se studies that have been done basically just contemplate[ ] the intervention of the legal system only. It’s not clear what percent have been involved in treatment or what percent are not involved in treatment' or what the nature of supervision is.' So I think that these additional factors, if he were to receive a community — non-custodial sentence, he would have federal supervision. He would have treatment. This would have a very substantial impact upon decreasing this risk. THE COURT: That’s lower than the three to five percent? THE WITNESS: Much lower, yes. I would characterize his risk as remote if he continues in treatment. Anyway, I would characterize it as remote, but even more remote if he continues in treatment under federal supervision. Hr’g Tr., Apr. 1, 2015, at 53:11-54:12 (emphasis added); see also Krueger Letter at 12 (“This risk would be reduced even further by participation in and completion of a sex offender specific program, and by the usual conditions of monitoring by federal probation in the community.”). 4. Recommendation for Sentence In recommending a non-inearceratory sentence, the expert testified to the significance of the ACS investigation in making the determination that R.V. posed no danger to his own children: THE WITNESS: Well, so the issue is, did he abuse his kids?... Child Protection Services was doing an evaluation, and they concluded no abuse indicated. That’s a very powerful thing. We refer to ... at the clinic ... Child Protection Services all the time. We deal with them a lot. If they concluded it hasn’t happened, that’s the best you can get. With ... a Family Court petition, I don’t know. I mean, if there were concerns — they must have been concerned about some criminality and — but this seems to be in abeyance. So it seems to me the way the evidence is, he did not abuse his children. Even if he had — and we regularly will deal with basically cases where individuals have abused their children, the issue is whether they can be reunited with their children and have unsupervised contact. His wife is reliable — appears [to] be a reliable reporter. His children are of age that they could outcry, and he’s in a therapeutic environment at Mustard Seed that is going to be ... very attentive to these issues. So I think his children are well protected, and I think he should be allowed immediate unsupervised contact with his children. That would be my recommendation. I would not make that if I was not, you know, of that opinion. In other cases, I’m very conservative in terms of placing somebody back with their family. I mean, there’s no evidence that he’s ever even abused his children. THE COURT: I take it your conclusion would be a non-incarceratory sentence with substantial close supervision and treatment? THE WITNESS: Yes. Hr’g Tr., Apr. 1, 2015, at 94:17-95:22 (emphasis added). The expert noted that separating R.V. from his family would harm his children: It is my opinion to a reasonable degree of medical certainty that he could live with his family without placing his children at risk. Indeed, given the negative effects of his separation from his children, it is my opinion that it would be in his children’s best interest to be reunited with him. Krueger Letter at 12 (emphasis added); see also Hr’g Tr., Apr. 1, 2015, at 54:23-55:3. Dr. Krueger also opined about R.V’s response to Mustard Seed’s treatment: [COUNSEL]: And what were your impressions of [Dr. Ford’s treatment] recommendation? [THE WITNESS]: That [R.V.] had been with the program. He had been there. He was motivated. He was motivated, that he was cooperating. They gave him a good prognosis, and it seems to me an appropriate program that will well take care of [R.V.]. [COUNSEL]: Ok. [THE WITNESS]: I would also like to add that it could certainly aid in the sort of management of his overall risk. They have the capability of doing random drug screens. They have the capability of bringing in family members, working with wives which could be beneficial. [COUNSEL]: Is there any other therapy that you might recommend for [R.V.] that you might find helpful? [THE WITNESS]: No. I think that — I think that if you were allowed to be in the community under conditions of federal probation, federal supervision would be helpful. And I think that his participation in Mustard Seed would be a very appropriate program, good program. Hr’g Tr., Apr. 1, 2015, at 62:22-63:15. B. Social Worker Vivianne Guevara, Director of Client and Mitigation Services at the Federal Defenders of New York and a licensed social worker, conducted an assessment of R.V.’s family. Ms. Guevara submitted a written evaluation and testified on the state of R.V.’s family and R.V.’s contribution to his family. See R.V. Sent. Mem., Mar. 30, 2015, ECF No. 41 (sealed), at Ex. C (“Family Assessment”); Hr’g Tr., Apr. 1, 2015, at 5:20-37:4. In order to conduct her assessment, Ms. Guevara met with R.V. alone once and with R.V. and his family four times. Hr’g Tr., Apr. 1, 2015, at 8:2-3. The last three meetings with R.V.’s family took place in R.V.’s home and lasted between one hour to one hour and a half each. Id. at 8:10-13. Ms. Guevara testified that she observed “a very close-knit family who was very supportive of each other, the children even supportive of their own parents ... and parents that are very supportive of their children most of all, very interested in their children’s success.” Id. at 13:17-25. She noted that, while R.V.’s arrest in this case “could have potentially fragmented this family” it instead “created a new sense of value, and a bond created by a shared experience, from which they all hope to move forward.” Family Assessment at 6. Ms. Guevara spoke to the extent of R.V.’s critical contribution to his family unit: [R.V.] even before this case was responsible for all of the financial income for the family. He brought in and brings in the only income for the family.... In addition to the financial responsibility, he does make most of the meals in the home. That is a huge responsibility. And also important, he is a good co-parent in the family. [R.V.’s wife] has held the family together when he wasn’t in [the] home, but it was a huge burden, and together, they parent these children. Without him there, it would be a huge burden financially and parenting-wise on the entire family. Hr’g Tr., Apr. 1, 2015, at 14:16-18, 15:1-7 (emphasis added). The social worker concluded that R.V.’s absence would have a negative impact on his family. Id. at 19:19-21 (“The children love their father they look to him for support and guidance and without him, they would be missing an important part of their lives[.]”). According to Ms. Guevara, R.V.’s continued. presence in his home would benefit both his family as well as R.V.’s own treatment: [R.V.’s] presence and participation in the home is vital to this family’s healing and progress, as well as [R.V.’s] own productivity and compliance. [R.V.’s] family is a protective factor that will motivate him to seek outlets and activities that will be in compliance with his restrictions and benefit his and his family’s overall health and healing. Family Assessment at 6. C, Family On April 24, 2015 the court ordered that R.V.’s wife and children be present in person at R.V.’s sentencing hearing. Scheduling Order, Apr. 24, 2015, EOF No. 45. The court observed and questioned defendant’s children. There was a clear indication of a loving relationship among parents and children. IV. Sentence Imposed Defendant was sentenced on April 30, 2015. See Sent. Hr’g. Before sentencing, R.V. affirmed his guilty plea. Id. at 24:21-26:11. The total Guidelines offense level is 28. The criminal history category is I, yielding a Guidelines imprisonment range of 78-97 months. U.S.S.G. Ch. 5 Pt. A; see also Sent. Hr’g, at 28:8-9. Defendant was sentenced to time-served and seven years supervised release, with the requirement of intense continuing treatment. See Sent. Hr’g, at 37:17-24. The sentence represents a downward departure from the Guidelines. Defendant was ordered to pay $2,000 in restitution, a $12,500 fine and $100 special assessment. See id, at 24:9-11,28:15-20. The sentencing proceedings were videotaped to develop an accurate record of the courtroom atmosphere, as well as some of the subtle factors and considerations that a district court must consider in imposing a sentence. See In re Sentencing, 219 F.R.D. 262, 264-65 (E.D.N.Y.2004) (describing the value of video recording for possible review of sentences on appeal). V. Sentencing Context A. Shifting Societal Norms Views on what delineates the bounds of acceptable pornography have varied, as anyone is aware who visits the excavations of Herculaneum — long-buried by ashes from Mount Vesuvius — where ancient public pornography is preserved. The works of great Renaissance and early Impressionist artists immortalized the images of children as sexual objects. See Mass. v. Oakes, 491 U.S. 576, 593, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989) (Brennan, J,, dissenting) (“Many of the world’s greatest artists — Degas, Renoir, Donatello, to name but a few — have worked from models under 18 years of age...”). One need not look so far back to encounter different social mores. “[I]t was not until the 1880s that the age of consent in America was raised from ten years of age. Indeed the concept of an ‘in-between’ period existing between childhood and adulthood, known as adolescence, did not develop until the early twentieth century.” Michael J. Henzey, Going on the Offensive: A Comprehensive Overview of Internet Child Pornography Distribution and Aggressive Legal Action, 11 Appalachian J.L. 1, 3 (2011) (footnotes omitted). “[E]rotic accounts of adult-child sex were commonplace in nineteenth century literature; Victorian era photographs and prints of young teenagers and pre-pubescent children also existed.” Id. (footnote omitted). The advent of photography spurred the “production, collection and exchange of pornographic material depicting children” in the mid-nineteenth century. Jessica A. Ramirez, Propriety of Internet Restrictions for Sex Offenders Convicted of Possession of Child Pornography: Should We Protect Their Virtual Liberty at the Expense of the Safety of Our Children?, 12 Ave Maria L.Rev. 123, 125 (2014). By the 1960s, the accessibility of child pornography had increased. Id. (footnote omitted). At this time, President Lyndon B. Johnson’s Commission on Pornography, and Obscenity determined that the nation would be best served by repealing all laws that restrict the distribution of obscene materials. In the U.S., materials clearly advertised as child pornography became widely available for purchase in stores. Henzey, supra, at 4-5 (footnotes omitted); see also Emily Weissler, Head Versus Heart: Applying Empirical Evidence About the Connection Between Child Pornography and Child Molestation to Probable Cause Analyses, 82 Fordham L.Rev. 1487, 1492 (2013) (“[I]n the 1960s, there was a general relaxation of censorship standards, and pornographic pictures and films of children became more widely available.”) (footnote omitted). But the late 1970s saw a shift in mindsets: [In the 1970s, feminist groups and others] began pushing back on the liberal sexual attitudes of the 1960s and 70s— Congress and state legislatures passed statutes specifically targeting child pornography as a crime, distinct from obscenity, by the late 1970s. The open trade era of child pornography and relaxed attitudes towards adult-child sex had come to an end. Id. Photographic child pornography came in “formats like magazines, 16-millimeter movie film, Polaroid pictures ...” Gray Mateo, The New Face of Child Pornography: Digital Imaging Technology and the Law, 2008 U. Ill. J.L. Tech. & Pol’y 175, 178 (internal quotation marks and footnote omitted); see also Ramirez, supra, at 125 (“through most of the twentieth century ... these images were usually produced at the local level, were costly and of poor quality, and were difficult to acquire”) (footnote omitted); Eric Griffin-Shelley, Sex and Love Addicts, Who Sexually Offend: Two Cases of Online Use of Child Pornography, 21 Sexual Addiction & Compulsivity: The J. of Treatment & Prevention 322, 323 (2014) (“Mail or adult bookstores were the vehicles for finding child pornography prior to’ the 21st century.”). Prior to the advent of the Internet, “production and duplication of [child pornography] required expensive equipment of the kind not normally found in the average home. To distribute images of child abuse, one had to either personally transport them or rely on a domestic mail carrier. Unsurprisingly, these challenges and risks may have served as barriers to offending for some persons who would have otherwise been inclined to obtain [child pornography].” Erik Faust, et al., Child Pornography Possessors and Child Contact Sex Offenders: A Multilevel Comparison of Demographic Characteristics and Rates of Recidivism, Sexual Abuse: A Journal of Research and Treatment (Feb. 19, 2014), http://sax.sagepub.com/content/ early/2014/02/19/1079063214521469, at 2. Efforts in the 1980s “to suppress the American child-porn trade — a small network of adult bookstores and mail-order services — were so successful that within a decade the market was all but nonexistent.” Rachel Aviv, The Science of Sex Abuse: Is it Right to Imprison People for Heinous Crimes They Have Not Yet Committed?, The New Yorker, Jan. 14, 2013; Henzey, supra, at 4-5 (“By 1986, most of the traditional methods of distributing child pornography were shut down.”). The Internet revolution “undid those [control] achievements.” Aviv, supra. B. Changing Technological Landscape 1. Personal Computer Revolution The “personal computer revolution” was launched in 1976, with the introduction of the “Apple I” computer and in 1977, with the introduction of the “Apple II.” M. Scott Boone, The Past, Present, and Future of Computing and Its Impact on Digital Rights Management, 2008 Mich. St. L.Rev. 413, 416 (2008) (footnote omitted). Still, at first the number of personal computers was quite small; only around two hundred Apple I computers were produced. Id. (footnote omitted). “The late 1970s and early 1980s saw the first spread of computers from isolated government and industrial usage to everyday personal usage.” Audrey Rogers, From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws, 87 St. John’s L.Rev. 1013, 1028 (2013) (footnote omitted). By 1993, Apple “produced over six million personal computers within the Apple II model series.” Boone, supra, at 416 (footnote omitted). By 2014, eight in ten adults in the United States-would report that “they use laptop and desktop computers somewhere in their lives — at home, work, school, or someplace else.” Susannah Fox & Lee Rainie, The Web at 25 in the U.S., Part 1: How the Internet has Woven Itself into American Life, Pew Research Center (Feb. 27, 2014), http://www.pewinternet. org/2014/02/27/part-l-how-the-intemet-has-woven-itself-into-american-life/. The following graphic represents this rapid increase: Id. 2. Internet Revolution [In] [t]he late 1970s and early 1980s ... connectivity between computers was evolving. In the 1970s, computer engineers at research institutions throughout the United States began to link their computers together using telecommunications technology. The first networking card was created in 1973, allowing data transfer between connected computers. In time, the network, originally limited to academic and military institutions, spread and became known as the Internet. Rogers, supra, at 1028 (footnotes omitted). Linking of computers allowed for the increasing popularity of online discussions and file-sharing. Id. As Audrey Rogers recounts: In the 1990s, the tandem spread of applications like e-mail and the World Wide Web and the development of fast networking technologies like Ethernet saw computer networking become commonplace .... While file-sharing was initially done through Usenet and Bulletin Boards, in 1999, Napster was released. Napster was a centralized system that indexed and stored music files that users of Napster made available on their computers for others to download. Files were transferred directly between users after authorization by Napster. It became extremely popular, and in 2001, Napster was sued by several recording companies. Napster lost in court against these companies and was eventually shut down. The next technological milestone was the development of decentralized file-sharing systems. The decentralized .systems allow users to directly connect to each other’s files, rather than going through a central index site. In 2001, Kazaa was released, with users mainly exchanging music files and other file types, such as videos, applications, and documents, over the Internet. Until its decline in 2004, Kazaa was the most popular file-sharing program in the world. As with Napster, it faced, and lost, numerous copyright infringement suits, until it declined in use and popularity. New iterations of file-sharing networks, such as Limew