In a world where financial transactions are increasingly electronic, using cash is not only old fashioned, but is increasingly considered prima facie evidence of criminal activity. This recent item from the New York Times illustrates the legal trend

Steve Bierfeldt, carrying some $4700 in cash as proceeds from the sale of "T shirts and bumper stickers" for the Ron Paul campaign, was detained by TSA screeners at the St. Louis airport, who questioned why Bierfeldt had the money. When he refused to explain, he was detained for questioning, and threatened with prosecution for possessing the money.

Unbeknownst to the federal officers, Bierfeldt taped their threats, and the case was quickly settled in Bierfeldt's favor through the intervention of the ACLU, which pointed out that the minimum amount of cash requiring reporting was $10,000, and that the TSA, which is only responsible for air travel security, overstepped its authority in any case.

This incident reminded me of a case from ten years ago--United States v. Bajakajian 524 U.S. 321 (1998). In that case, Hosep Bajakajian sought to take $357,144 in cash aboard an airplane without reporting the currency on the required customs form. As part of its prosecution of Bajakajian for failure to file the report, the government sought forfeiture of the entire amount. This penalty was struck down by the U.S. Supreme Court as a violation of Bajakajian's rights under the Eight Amendment against "excessive fines".

Fearful of the encouragement this case might give to money laundering, Congress later added to the 9/11-inspired USA PATRIOT Act language that defined the attempt to transport undeclared cash above the $10,000 threshold to be itself a "corpus delicti". This reversed the Court's findings in the Bajakajian case. Now, the crime isn't the mere failure to report having the currency, but the possession of currency itself—quite apart from whether that currency was obtained through legal or illegal operations.

In this subtle but real way, the possession and use of cash is becoming less legally legitimate.