That's not Facebook's argument. Their argument is that a contract exists with their user. In that contract, the user agreed not to use 'automated' means of access.

Then, when the user has Power perform automated access, Facebook claims that a criminal law violation has occurred, because that's unauthorized access under their terms. They want that to be treated just like other California Penal Code unauthorized access -- access like exploiting a bug or stealing someone's password to view or change info never intended for you.

EFF says only a contractual violation has occurred; violating some arbitrary company-chosen 'terms of use' shouldn't be enough to trigger criminal enforcement.

It's an interesting and difficult distinction. So many of these systems and terms are defined by the arbitrary choices of coders and lawyers. At one level of abstraction, it's against the will of the system provider -- Facebook -- so it could be seen like a break-in.

But at another level, it's just a contract, and Facebook has other contract-enforcement options short of criminal prosecution: cancel the account, sue for actual damages, and so forth. If Facebook can define what's a 'crime' via arbitrary clickthrough terms, suddenly users and Power staff could wind up in jail for a terms-of-use violation that had no other economic damages.

So the issues are tricky, but important.