This example is not entirely equivalent. My understanding is that the opinion of the court was that authorisation (for the definition of "without permission") cannot be decided based on method of access. I.e. if you have granted a user access to data, you can't later say they accessed it without permission because they used a proxy or bot to access it (in violation of your TOS).

A terms of service can not define law, but it can make explicit what data a provider is authorising a user to access.