ToS is not a contract, it's a license. By default you don't get a free licence to access and copy others' work, and so one has to be granted.
Much in the same way that you can't start using someone else's land without their permission and you don't get to say "I never knew" or "I never agreed not to use the land". By default, you are not allowed to and must have that right granted to you and you are expected to know that.
Should an (otherwise non-criminal) violation of a software license be treated as a criminal offence by the courts just because it involved a computer? Hell no. Private citizens do not get to invent criminal law themselves and the EFF should fight this hard but not for the reasons you give.
why do you need a license to use something that is posted and publically accessible? A license makes sense for a copyrighted work that you are copying, but for a web service it's less clear.
If I had a physical analog of facebook (a bunch of photos, a travel journal, and a list of my friends) and left it on a table, then do you need a license to pick it up and review it? No. So why do you need one if I do the same thing as a web site?
I'm not sure that's correct, but it could be. It was my understanding it was a contract. That's why you have to agree to it - you are providing your consent and acknowledgement that you have read the terms and agree to abide by them.
If it was a license, they could simply grant it to you without requiring your consent. For example - I can buy a license for some shareware/trialware software by just sending them money and getting the license key in my email. Then when I go to use the software, it may ask for me to agree to the terms of service so that there is a formal agreement on the allowed uses of the software.
Much in the same way that you can't start using someone else's land without their permission and you don't get to say "I never knew" or "I never agreed not to use the land". By default, you are not allowed to and must have that right granted to you and you are expected to know that.
Should an (otherwise non-criminal) violation of a software license be treated as a criminal offence by the courts just because it involved a computer? Hell no. Private citizens do not get to invent criminal law themselves and the EFF should fight this hard but not for the reasons you give.