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.
I guess I don't see that as a matter of law. The wire fraud statue talks of false pretenses, regardless of the method of circumvention, reconnecting after being banned looks like false pretenses to me. As for civil versus criminal, the law makes no such bright line distinction - almost every crime with an identifiable victim is also a tort.
Now admittedly I'm not an expert at internet law (though I do have a JD), but Professor Kerr is. Unless your contention is that he doesn't understand the technical details well enough to render an opinion, I don't see how you or the linked article refute his opinion given that you neither of you address it head on (i.e. using the case law).
I respect Professor Kerr's expertise and the case he cited is still relevant to my original assertion. In the cited case an employee specifically used a another employee's credentials to gain unlawful access. But in this case, Mr. Swartz didn't falsely impersonate anyone by simply using another publicly available IP that he was rightfully permitted to obtain.
