Consent does not mean confusing your recipients

Cam Beck on Marketing Prefs has a post today about presenting users with confusing choices in an opt-in process.

Bank of America followed the letter of the law, but they did so with a method that can only be described as misleading since people typically don’t read those sorts of messages, and the action required to opt out changes from one email message to the next within the same form.
I’ve been in these sorts of debates before: The marketing managers are presumably concerned that their bonuses will be partially based on the number of people who sign up for emails. I can think of no other reason they are so adamant that they find some way to ensure people get marketing spam they don’t want.

Many years ago when I was handling abuse@ very large network provider, one of our very large, well known customers was having some problems with people complaining about spam. After much discussion between their executives, the abuse desk and our executives the customer agreed to uncheck the opt-in boxes allowing customers to actually opt-in to email.
Somewhere around six months later, the checkboxes were turned back on.
When we asked the customer about it, they said that not enough people opted in to the email when the boxes were unchecked by default, so they had to turn them back on.
My happy, customer-facing persona prevented me from jumping up and down and loudly pointing out that just because someone failed to uncheck a box did not mean they were actually consenting to receive email from this customer.
That was many years ago, on a very different Internet; before the days of feedback loops and whitelists. The ISPs did not have any way to measure user engagement or complaints. It did not matter if the consent was just a user missing or forgetting to uncheck an opt-in box, it was still consent — at least in the eyes of the marketer.
Many companies, including Bank of America, are still trying to confuse the consent out of recipients. That’s not really consent. The users do not really want your mail. They are not actively engaged in your mailings or your company.
Do you really want recipients who are only on your list because you made it too confusing for them to express their choice?
Hat tip: Matt