The point was that the bar for "material harm" is so low that an infant couldn't trip over it. So much that it's barely even worth consideration. Basically, if you violate a ToS, the company on the other side could make it a federal case if they choose to.
From the company's standpoint, there's no reason not to, unless they've already committed their lawyers elsewhere.
So it might as well be strict liability. If they choose to pursue you, you're in for a bad time. Note that a prosecutor still has to choose to come after you, even for strict liability offenses.
Statutory rape is an example of a strict liability crime, because you can be convicted of it without even knowing you committed it (at the time).
What I'm getting at here is that, the "harm" thing is not a good bar. The only difference between breaking a ToS in this condition and breaking a strict liability law is that it's a corporation instead of a prosecutor initiating the case.
*ed
Dropped "unwittingly", since you have to have been proven to know you're breaking the ToS.. still a broken law..
I think you need to read the CFAA --- carefully, because clauses that occur early in the statute are refined and clarified later in the statute --- before wading into technical discussions about it.
It's not a particularly difficult law to understand.
Are benefit and harm legally defined terms in this instance, or can a clever prosecutor convince a jury of the criminal equivalent of the idea that making a phone with rounded rectangles is worth $1B?