Here’s the problem. If you consent by not switching off your phone then switching off your phone becomes sudpicious and it’s not a big leap to find a judge that will say turning off your phone gives them probable cause to search it.
So you’re damned if you do and shamed if you don’t.
I suspect it’s the “reasonable expectation of privacy” test which is a major determining factor of the applicability of 4th Amendment cases in the U.S.
I’d personally argue that I have a reasonable expectation that Maryland’s AG can get lost but I’m not a lawyer.
More relevant than the AG’s statement … I’d expect that a whisper into the ear of a relatively trustworthy associate a message for a mutual friend should be—however awake my intermediary might be—relatively free of warrantless tracking by the U.S. government.
Surely that information is already available if said government officials are carrying mobile phones or any similar broadcasting device.
By broadcasting openly over sideband, MUSAK corporation consents to have their content to be played by people who don’t pay for it.
Likewise, the argument for Satellite hackers. The content is being broadcast through my residence and therefore they have consented to allow all of us to decode their signals as we see fit.
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