Interesting how you imply it's safe to assume that. I mean, those consoles are quite old with different feature sets and measurably poorer security, bans weren't commonplace and so the infrastructure wasn't created with it in mind. I think, "most likely", they would have looked at how their competitors deal with pirates and hackers and at least taken bans into consideration. The only saving-grace might be if they don't have a way to uniquely identify 3DS consoles, but they probably do (or at least, they could introduce it with a firmware update).
Better not to assume, unless you don't really care if you get banned or not.