Sigh. If you refuse to see the issue, I will not be able to convince you that there is an issue.
Also it was you who cited the tos and thus bring legality into this.
And about being "accountable for accepting a tos without reading it" is why there are consumer laws. They are there so that companies cannot just hide something in a tos in legalese, so no one understands the consequences.
There is not a word about mailing list subscriptions that are handled by developers in the tos. So please do not try to interpret it to mean such. It specifically mentions Itch and marketing. But Itch does not send those emails. They do not even go through an approval mechanism, so Itch would have any sort of control over those mails. Except those hard limits like 1 mail per day. And to go further: to make sure they can easily access any files you may have updated is from the example Itch gives. This is what devlogs are used for nowadays. It hints that this feature was not intended for marketing, but for updates.
Also, I will say it again: this has absolutley nothing to do with bundles. So do not try to cite cheap bundles as a moral justifcation for this mailing list business. If I buy a single game for $ 20, I am also on the mailing list for that game. Without ability to even refuse the subscription or manage my subscription before I get the first such mail.
The reason why this comes up with bundles, is the trivial fact that there are many developers involved and some might use that feature. And if there are indeed developers that only join such bundles to later use the mailing list feature to send out advertisements, than this feature should be reworked yesterday.
In case you missed my suggestion for this, I shall repeat it. Because I did not have the impression that you disagreed with that in particular.
What would be ok, is a button and a suggestion to subscribe to a mailing list on the purchase page. Or at least an unsubscribe button there, instead of only showing it to users when they receive a mail.