A Roadmap for Navigating the Uncharted Legal Design Landscape Towards a Bright Quantum Future

Dr. Katri L. Nousiainen is a lawyer and professional in Legal and Economics and Economics Education. She is a Teaching Faculty in the Management Program at Harvard University and holds a Resident Research Fellow position at Harvard Law School in the Program on Negotiation (PON). In addition, she is also affiliated with the University of Cambridge Law (United Kingdom) and the Hanken School of Economics (Finland). Before joining Harvard, she was affiliated with the University of California Berkeley Law Center for Law and Technology (BCLT) and with the Aix-Marseille School of Economics. She is known for her articles, podcasts, and book chapters on legal design, and law and emerging technologies, especially related to quantum technologies. In her work, she supports and assists companies and other operators in improving the quality and efficiency of their legal processes, products, and services. Presently she is pioneering research projects on law, emerging technologies, and legal design.

Dr. Joonas Keski-Rahkonen is a postdoctoral researcher and teaching fellow in the Department of Physics at Harvard University, where he moved after receiving his doctoral degree in computational physics from Tampere University (Finland) in 2020. His research in theoretical and computational physics comprises the study of the classical and quantum nature of chaos, transport phenomena in nano- and mesoscopic structures, and the development of simulation techniques.

Introduction

We are approaching a brave new world of quantum technologies. Emerging novel quantum resources, such as quantum computers and simulators, have an enormous potential to provide benefits beyond the capabilities of today’s technology in terms of social impact and commercial applications. Potential applications include quantum sensing, imaging, metrology, and communication. Furthermore, “quantum-boosted” artificial intelligence could substantially improve the quality and efficiency of discovery acceleration, research, and innovation processes, and thus subsequently lower transaction costs.

At the same time, the emergence of quantum technologies will fundamentally and extensively affect societal and legal development, underlying power dynamics, and international relations. In the legal arena, governmental authorities, policy makers, and lawyers have a duty to ensure precautionary measures incorporate appropriate principles: the quantum future calls for a new legal order. We must anticipate the social and legal ramifications of widespread adoption of new quantum technologies.

The Quantum Roadmap

According to the economic theories of “path dependency,” knowledge is commonly scattered in society and learning, that is, comprehending the “bigger picture,” occurs gradually. Full knowledge of the impacts of the emerging quantum technologies is still sparse, but as these technologies mature, new and more accurate knowledge will be available for taking proper legal actions. On the other hand, we encounter the similar dilemma with quantum technologies as at the genesis of the internet and gene technology in the past: we have a golden opportunity to embrace learnings from the past, to enhance and build on the understanding that we have today. The policy frameworks that emerged with the advent of the internet can be a starting point; however, adequately confronting quantum technologies will take a new point of view. Comprehensive understanding and knowledge are pivotal for successful innovation, development, and competition.

Only with adequate knowledge can we address the various open legal and ethical questions that accompany our society’s quantum leap. In dialogue, all the relevant parties should identify the best characteristics to foster the flourishing of new technology for the benefit of society. Surprisingly, for the scale of its potential impact, quantum technology has sparked little legislative or regulatory consideration. We propose the Quantum Roadmap - Law, Economics, Sustainability, and Society (LESS) to encourage and guide this needed discussion. Our framework classifies the legal questions stemming from the emergence of quantum innovations into five general categories. For each set of illustrative open questions, the roadmap presents a basic principle to guide the evolution of legislation for the quantum future. Heeding the issues raised in the roadmap and implementing its principles will allow decision makers to navigate the societal implications of the emergence of quantum technologies towards a bright quantum future.

Figure: The Quantum Roadmap

I. Ethics

What ethical risks does quantum technology create, and how can we mitigate those risks? To what extent has quantum technology become a military asset, and what kind of role should international organizations play in governing quantum-based weapon technology?

Principle: Equal access, public good, and transparency are the guiding ethical principles. The employment or development of new technologies must not aggravate or create inequalities, neither through design nor by hiding discriminatory practices. Private interests, including commercial interests, should be balanced with public interests in the development of quantum technology.

Example: We can build upon existing discussions and guidelines on technologies, given the ethical aspects of quantum technologies are relatively new and lack established legal-ethical frameworks. Furthermore, we expect the ethical norms for quantum technologies to be dynamic and contextual: quantum technology regulations will be a product of their time, following the contemporary trends of the applications of quantum technology and their implications. Consequently, the legal-ethical framework should be agile and updated with regular intervals.

Some of the most foreseeable ethical issues are related to the dual-usage of quantum technologies. The term “dual-usage” refers to how technology can be employed in both military and in the commercial applications. In this regard, at the end of 2018, the Commerce Department’s Bureau of Industry and Security announced that certain quantum technologies, such as quantum computing, sensing, and encryption, should be added to the list of blocked exports due to their dual-usage character. Subsequently, the United States has included some quantum technologies on the list of goods whose export is being restricted.

II. Inclusiveness

How will quantum technology affect international trade, trade relations, and trade organizations? What kind of regulatory challenges does it raise? What social, economic, and innovation-related effects will export and import restrictions have on quantum technology? What roles should the public and private sectors play at different stages of quantum technology development? How can—or should—we fund quantum infrastructure?

Principle: Democratic involvement and the sharing of knowledge and resources are the guiding principles of inclusiveness. The employment or development of new technologies should be inclusive and provide benefits to be utilized for the good of humankind.

Example: We believe development or employment of new technologies should be inclusive and provide benefits to be utilized for the good of the whole of humankind. The ambition of an inclusive approach is to prevent various risks of increased inequality, such as those stemming from monopolization of crucial patents, or disparity during the commercialization phase, which pertains to companies as well as countries. Furthermore, it aims to integrate our democratic values into how new quantum technologies are introduced into society, which, for example, requires educating the general public on quantum-related technologies. Commercial players will also benefit from greater societal understanding since technology that has gained the trust of the people has a significant market advantage.

From the standpoint of our principle of inclusiveness, equal access and openness could help to impede, or at least restrict, the first operators from dominating the field. One concrete future software-level solution could be a cloud-based service enabling researchers and companies to fully tap into the benefits of quantum computers on an equal footing. This cloud-based quantum computing could be either provided by a commercial actor or organized by government authorities. Indeed, the current key actors of the quantum computing market, such as IBM, Google, Microsoft, and Amazon, are on pace to establish their quantum clouds, thus broadening access to quantum computing.

III. Balancing Regulatory Activities

What type of institutions and governance structures does emerging quantum technology require? To what extent can we rely on current and emerging regulatory frameworks? What can we learn from the history of technological governance and regulatory restrictions?

Principle: Innovativeness, common good, effectiveness and being technology-friendly are the guiding regulatory principles. The employment or development of new technologies must not be hindered through regulatory measures. Regulations should not harm the positive ramifications of the technology but rather minimize the negative ramifications as much as possible.

Example: Regulatory measures should not hinder the development or employment of new technologies. The goal of the regulatory route is to mitigate risks of applied quantum technology such that it may benefit society. At the same time, any legislative action should respect principles of proportionality and subsidiarity, providing a stable and predictable regulatory environment, which is a key element for technological development by commercial players. To reach this end, regulators and legal professionals could benefit from employing interdisciplinary best practices. In addition, the regulatory actions should balance legal development, legal rights and obligations, public good, and incentives to innovate.

In fact, some countries have already taken export restriction actions regarding quantum technologies. Indeed, we are witnessing the US and China technology race regarding quantum technologies. However, like the usage of technology, export policy also has dual-usage aspects. States should be prudent in imposing export restrictions. We recognize that exportation also offers great opportunities to collaborate, learn from each other, and it also provides transparency in the development of new technologies. As the quantum technologies get commercialized, it is a linchpin to find the right balance to safeguard security, and peace, as well as to improve technological development. In particular, international bodies, such as the United Nations or World Trade Organization should take a bigger role in addressing these issues.

IV. Safeguarding Individual Rights and Liberties

How will quantum technology affect digital surveillance, privacy, fairness, trust, access to information, and human rights? What are recommendations for the private sector to collaborate with the government?

Principle: The employment or development of new technologies must not disturb recognized individual rights and liberties, unreasonably exclude individual access without good cause, create or aggravate inequalities between individuals, disturb individual autonomy, create barriers or obstruct access to justice or other recognized fundamental principles. Prioritizing individual autonomy, fundamental rights and liberties, equality and fairness are the guiding principles.

Example: Future quantum applications and innovations should comply with existing legislation on data protection, governance and privacy. However, it is currently unknown to what extent can we rely on current and emerging regulatory frameworks, such as General Data Protection Regulation, The California Consumer Privacy Act/California Privacy Rights Act, Proposal for a Regulation of the European Parliament and of the Council Laying Down Harmonized Rules on Artificial Intelligence (Artificial Intelligence Act) and Amending Certain Union Legislative Acts, Digital Markets Act, The Digital Services Act, Data Act, and Wassenaar Arrangement.

V. Innovating by Design

What type of innovation should we want? How can and should governments and public entities shape innovation in quantum technology, and what path dependencies might the corresponding actions or inactions create?

Principle: The employment or development of new technologies must be designed in compliance with the remaining principles. The design of the technology should foster human centricity, openness, transparency, and sustainability.

Example: Academia plays a central role in the investigation, development, and design of quantum technology. It is also the best forum to initiate necessary debate about quantum technology. Researchers have a duty to steer research and innovation in a way that is cognizant of various risks, legal gaps, ethical questions, societal implications, and unknown ramifications of quantum technologies. Forward-looking practices should be designed and tested. Subsequently, insights should be shared and disseminated openly within and outside of the academic community.

Alongside academia, the public sector needs to step in. For example, governments and governmental institutions can bring the quantum community together to forecast future trends of quantum technology evolution for the service of the public. With this information, the public sector can become more aware of risks and engage in potential benefits related to quantum technologies. Moreover, it enables the public sector to set up quantum-targeted strategies and policies to steer the progress into the right direction, to maximize the social benefit of the technology. This also enables governments to found new specialized public institutes to offer legal-ethical guidance on the current possibilities associated with the development and usage of quantum technologies from the public point of view. The public sector should also have healthy dialogue with the private sector to establish a pathway for commercial innovations.

Alongside legislation, funding itself can be an effective regulatory tool for encouraging the design of socially equitable quantum infrastructure without sacrificing the evolution and integration of the technology. For example, if the development of basic research is carried out or supported by public funding, the fruits of that research could be then shared accordingly. This could mean that fundamental research results should be made widely available, and commercialization could take place via licensing to prevent the centralization of crucial quantum innovations with one company. This kind of proactive involvement of the public sector could also be a precursor to establishing industry-wide hardware standards that further stimulate technological evolution by, for example, luring smaller and new players into the quantum field.

Conclusion

As elucidated by the Quantum Roadmap above, the necessity of updating legislation is a multifaceted and complex challenge. Yet, the presented Quantum Roadmap helps to operate and acknowledge different standings in the post-quantum legal landscape where different actors have varying incentives. The five principles are intended to support the relevant governmental agencies and institutions, the elected representatives as well as the quantum industry members alike to orient in the post-quantum era.

The most salient conundrum is to obtain regulatory equilibrium within quantum technologies. Namely, balancing the maintenance of social stability, well-being, and ethical values, while simultaneously promoting the progress, integration, and advancement of quantum technology. The foundations of a functional and respectful society are enforceability, effectiveness, stability, predictability, and transparency. These principles inform the Quantum Roadmap to establish a solid foundation for designing the future quantum legal framework.