If they've automated such detection, they're already 'hacking' your site by violating your implied TOS.
Thank you IANAL for attempting to give legal advice.
There are no "implied TOS". If you do not make an effort to hide your site behind a click acceptance, it is fair game. What you are talking about is known as "browsewrap"; https://en.wikipedia.org/wiki/... - There is no hard and fast rules about browsewraps being enforceable. It's done on a case-by-case basis. So unless the legal text is on the same page (and not just "by reading this you agree to the TOS found on this other page") as the data you're trying to protect, and most likely would have to appear earlier on the page, not in a footer, you really don't have a leg to stand on.
What sites are doing now is making obvious and unavoidable blockers (whole pages, modals, pop overs, etc) that will only go away with user interaction. These are referred to as "clickwrap". They are enforceable. The user (be it person or bot) had to perform an action acknowledging that they are aware and will abide by the policies.
They tried to force customers into using arbitration in any legal matters. But there was nothing stopping a customer from making a purchase without ever seeing the TOS. Since the TOS was not obvious, and nothing could prove the customer saw it, it was not legally binding and Zappos' lost big.