My comment based on the cited refutation is exactly related to what Professor Kerr was addressing. While technology law is very undeveloped and much of the penal code can theoretically reach into civil territory -- a small tweak of the facts and the entire matter becomes civil rather than penal. For example if Mr. Swartz had performed a buffer overflow exploit to gain access to JSTOR we'd both agree this was a criminal matter. If we're talking about violation of the private TOS of JSTOR, including circumventing their IP bans by using another public and legally available IP at MIT then we're dealing with a civil matter. These are the kinds of murky waters we have to deal with in our generation, but I think the distinction is pretty clear.