Former KSFY/KOTA Pierre reporter Austin Goss lost his job this week because the Stanley County Deputy State’s Attorney Anna E. Maher has charged him with one Class 1 misdemeanor stemming from one dumb prank call placed back in January to former SDGOP chairman Dan Lederman. But what law does the state allege Goss broke, and does the state have a case?
The formal charge in the complaint and request for arrest warrant (prepared May 2; filed May 3) is one count of “Making Threatening, Harassing, or Misleading Contacts (Class 1 Misdemeanor), in violation of SDCL 49-31-3(5)(b), in that Defendant did, contact another person [Lederman]…, and in doing so, intentionally caused to be displayed as caller identification a fictitious or misleading name or telephone number of another person [Noem]… who has not granted Defendant the right to display that other person’s name or phone number”.
The state mis-cites the statute under which Goss is being charged; it is SDCL 49-31-31, not SDCL 49-31-3. The full statute reads as followed (I bold the clause the state meant to specify as the basis for charging Goss):
49-31-31. Contact by telephone or other device–Threatening, harassing, or misleading contacts–Penalty.
It is a Class 1 misdemeanor for a person to use a telephone or other electronic communication device for any of the following purposes:
- To contact another person with intent to terrorize, intimidate, threaten, harass, or annoy such person by using obscene or lewd language or by suggesting a lewd or lascivious act;
- To contact another person with intent to threaten to inflict physical harm or injury to any person or property;
- To contact another person with intent to extort money or other things of value;
- To contact another person with intent to disturb that person by repeated anonymous telephone calls or intentionally failing to replace the receiver or disengage the telephone connection; or
- Except as allowed in § 49-31-31.2, to contact or to attempt to contact another person and, in so doing, intentionally cause to be displayed as caller identification, a fictitious or misleading name or telephone number:
- To defraud, cause harm, or wrongfully obtain anything of value from another person; or
- Of another person who has not granted the person the right to display that other person’s name or phone number, as applicable.
It is a Class 1 misdemeanor for a person to knowingly permit a telephone or other electronic communication device under his or her control to be used for a purpose prohibited by this section.
Despite Lederman’s ridiculous assertion to state law enforcement (documented in DCI Special Agent Charles T. Swanson’s April 24 Affidavit of Probable Cause) that the “tone and tenor” of the plainly fake and comically overacted prank call “caused him concern for his safety”, the state is not charging Goss with threatening to inflict physical harm or injury to Lederman’s person or property. The state is not charging Goss with terrorizing, intimidating, threatening, or annoying Lederman by using obscene or lewd language or saying anything sexually suggestive. (Anyone who does suggest anything sexual with Dan Lederman should be locked up for therapy.) The state is not charging that Goss called to extort Lederman. The state is not charging that Goss disturbed Lederman with repeated phone calls. The state is not charging Goss with using Noem’s number to defraud, harm, or rob Lederman.
In citing SDCL 49-31-31(5)(b), the state is pointing past all those other possible crimes and alleging that the only point at which Goss broke the law was in allegedly typing Kristi Noem’s phone number into the “Send from” field on PrankDial.com without her permission and thus causing PrankDial.com to send the prank call to Lederman’s phone with Kristi Noem’s personal phone number displayed as the incoming caller.
So to be clear, had Goss punched his own number into the “Send from” field, and had his own number appeared as the incoming caller on that January 22 prank call to Lederman’s phone, Goss wouldn’t be facing any charges.
If you have Dan Lederman’s phone number, and you send him the “Mafia Guy Got Vaccines” call from PrankDial.com, and if you enter your own number as the number to display when Dan gets the call, you will not be breaking the law.
If you decide to send Dan this call, but first you ask a friend if you can use his number instead of yours for the caller identification, and your friend says, “Heck yeah! Let’s prank that putz!” neither of you will face a weekend in the Stanley County Jail.
Now please don’t misunderstand me: I most definitely am not encouraging everyone who reads this blog and who has Dan Lederman’s phone number (a subset of the population that is not as small as you might think) to send Lederman another “Mafia Guy Got Vaccines” call with their own numbers or a consenting buddy’s number, because such a flood of dozens of repetitive prank calls would only annoy Dan, achieve no practical social justice, and invite Attorney General Marty Jackley to look for a way to hang me for orchestrating telecommunicative mischief. But if a whole bunch of you readers made the same dumb prank call to Dan Lederman and didn’t disguise your numbers, none of you would be breaking the law. And if I did orchestrate such a crank-call campaign, I might not even be breaking SDCL 49-31-31, because it appears to apply only to the person who uses the phone or other electronic device to contact Lederman. If I get you to call Lederman and annoy him but I don’t contact him myself, SDCL 49-31-31 doesn’t apply to me…
…which leads me to read the statute again:
It is a Class 1 misdemeanor for a person to use a telephone or other electronic communication device…to contact or to attempt to contact another person…to contact or to attempt to contact another person and, in so doing, intentionally cause to be displayed as caller identification, a fictitious or misleading name or telephone number…
of another person who has not granted the person the right to display that other person’s name or phone number, as applicable.
SDCL 49-31-31 applies to the person who makes the call. According to the probable cause affidavit, on January 22, 2023, Austin Goss did not contact Dan Lederman. PrankDial.com contacted Dan Lederman. PrankDial.com displayed Kristi Noem’s phone number to conceal its identity. So if Austin Goss committed a crime, it wasn’t under SDCL 49-31-31, because he didn’t contact Lederman on January 22.
Even if that line of reasoning is incorrect—if, say, the state can argue that “contact” includes “direct another person or entity to place a call to”—the state does not appear to have evidence that Austin Goss directed PrankDial.com to call Dan Lederman. Special Agent Swanson says in the probable cause affidavit that the IP address used to order the prank call was associated with Goss’s home Midco Internet service:
I provided a subpoena to PrankDial Customer Support, and learned that the IP Address used to make the prank call was: 2605:4a80:a300:f1e0:7871:c904:35c5:3be2 on 1/22/23 at 20:27:59. A search of the American Registry for Internet Numbers (ARIN) shows that the IP Address used is registered to Midcontinent Communications.
I then obtained a subpoena for subscriber records related to the Midcontinent Communications IP Address from the Hughes County State Attorney’s Office which was served to Midcontinent Communications.
On March 30th, 2023, Midcontinent Communications provided me with their production of records in response to my subpoena. Upon reviewing these records, I observed the IP Address in question to have been utilized by the account of Austin Goss.…
Upon interviewing Austin, I learned that he… has Midcontinent Communications provided internet service, and his home Wi-FI is password protected. Meaning that the use of his home internet would be restricted to himself and those whom he has personally allowed access, such as his wife or two-year-old child [DCI S.A. Charles T. Swanson, State v. Goss: Affidavit of Probable Cause, 2023.04.24, posted by KSFY, 2023.05.04].
Wait a minute: DCI found actual child porn on billionaire T. Denny Sanford’s cell phone, but all Sanford’s lawyers had to do was to assert that someone hacked his phone and poofskies! no charges. DCI hasn’t searched Goss’s phone or his computer; they’ve just found an IP address associated with Goss’s home Internet service, and they’re telling us that because Goss has a password on his router, no one could have hacked his gear?
Special Agent Swanson adds that Goss is a journalist, knows the Governor, and knows Lederman. He cites has Lederman’s claim that Goss “will occasionally text him… snide or rude remarks.” And he asserts that Goss dislikes Lederman. From all that, Special Agent Swanson divines probable cause that Goss sent Lederman the prank call.
But why does being a journalist count toward probable cause? Wouldn’t a journalist have good reason not to do what the state charges him with doing?
And aren’t there hundreds, maybe thousands of other people who know both Kristi Noem and Dan Lederman, and wouldn’t a significant chunk of the people who really know Noem and Lederman dislike them and thus have at least as much motive to annoy them as Swanson imputes to Goss?
All of these points disappear if Austin Goss steps out on social media (Twitter account still there!) and says, “Yup, I masked a prank call with Kristi Noem’s phone number without Kristi Noem’s permission.”
But there’s no confession in the probable cause affidavit, and an IP address alone does not prove guilt. If the state treats the evidence against Goss as circumstantially as it treated the evidence against Sanford, Goss should be able, à la Sanford and à la Noem, that he was hacked and force the state to say, “Oh well, nothing prosecutable here.”
And even if the state keeps prosecuting, their thin evidence supports only the thinnest charge under SDCL 49-31-31, that the defendant spoofed Kristi Noem’s phone number without her permission. The state has zero evidence of threats, harassment, fraud, or anything similarly grave. And depending on how the defense responds, the state may not even have enough evidence to prove its spoofing charge.