Right. Also, the practice of having a sticker on a shrink-wrapped box of software that read "By opening this package you agree to the Terms of Service contained within", where the TOS was inside the box that you needed to open the package to read, was deemed unenforceable back in the 90's. It's the reason that TOS' are now displayed as a pop-up during installation. Not that many more people actually read them before installing the software, but at least they are given the option to.

I suspect that a competent lawyer could fairly easily argue that this "automatic opt-in" is the same thing in a slightly different format.