In our modern society, we cannot imagine a world without computers and the many benefits that come with them. Although they have significantly supported the evolution of our society, the digital world still faces many limitations. But quantum computing promises to become a technology that will unquestionably improve the processing capacities of future computers so that important technological research can be accelerated enormously.
Quantum computing, which only existed on paper in the 20th century, has made a major leap forward in the last decade. For example, in September 2019, Google claimed it had reached “quantum supremacy” with the creation of a quantum computer that for the first time solved a problem after a calculation of just a few minutes, for which a conventional computer would need 10,000 years. Other scientists later disputed these results. While it may indeed be still too early to say that so-called “quantum supremacy” has been reached, such an example shows that this technology is on the rise.
New technologies create new legal issues, meaning that lawyers need to be aware of their impact on the law today and provide the necessary insights. This article serves this purpose: it provides an initial explanation of quantum technology, its potential applications and the legal consequences that the “quantum lawyer” of the future may face.
WHAT IS QUANTUM COMPUTING?
In some cases conventional computers, which are based on classical mechanics and use voltages flowing through circuits and gates, do not have sufficient processing power. Since data is composed of so-called “bits” that have a single state of 0 or 1, the value of a bit can only assume two states. A traditional computer stores data by combining these 0s and 1s. Large amounts of data can lead to long combinations that take up a large part of the storage space of the computer.
Quantum computers solve this problem by using quantum mechanical phenomena to perform a large number of processing tasks simultaneously. They differ from traditional computers by working with quantum bits (or qubits) for data storage instead of bits. These qubits are able to take a value of 0 or 1, and at the same time take all possible combinations of them – this is a “superposition”.
In this way, multiple parallel calculations can be carried out. Unlike a normal computer operating in a straight line, quantum computers do so in a web, with each point branching out into several other points. This can significantly increase their computing and processing power, requiring much less time, and even much less energy, to solve certain issues than today’s computers.
In order to reach real “quantum supremacy”, a useful computation running on quantum hardware for which there is no classical equivalent must be conceived. However, at this time scientists think that we are still at least 10 to 15 years away from such a point. Quantum computers today still struggle with several problems such as short running times, no CMOS integration, feed-forward of qubit states, the sizeable number of qubits required, the lack of depth of quantum circuits, the lack of quantum programming languages and, maybe the most important of all, the lack of error correction. Indeed, qubits are extremely error-prone and the current quantum computers are not able to correct the errors that can occur during quantum calculation. A good quantum computer should use qubits with a low margin of error so that calculations do not go wrong, but quantum computers with 1,000 logical qubits require millions of ancillary qubits for error corrections. Today, no existing hardware platform can provide the robust error correction required for such large-scale computation.
Notwithstanding the fact that it is hard to imagine the future with the advent of such technology, there are already some applications to be found such as, eg, quantum cryptography and the Google Sycamore, which uses a programmable superconducting processor. The potential of quantum computing to drive incredible innovation in technology and transform major industries is clear. This ranges from improved machine learning (due to the possibility of improving the learning curve for AI significantly) to a more efficient development of medicines (as research results will be analysed in a much more efficient way) and improved meteorology (because it will be easier to predict weather patterns or long-term climate trends). The aviation industry could benefit from better calculations needed to develop airplane parts, while such calculations could also pose a danger to modern encryptions (such as blockchain). Indeed, the possibilities seem endless.
LEGAL IMPLICATIONS OF QUANTUM COMPUTING
Data is protected by the use of algorithms. It is expected that quantum computers will be able to hack into many of today’s encryption systems due to their much greater computing power, which will enable them to decipher the keys used for these encryption systems, however complex they may be. This ability would obviously have enormous consequences for the information security of an organisation and the protection of data on the internet in general. Hence, organisations will have to invest in quantum-resistant cryptography, which needs to be able to defend itself against other quantum mechanisms. There will be a constant bidding of complex cryptographic algorithms, which will require a continuous and rapid implementation of the latest technology.
If an organisation, as a data processor, will still use encrypted networks that can openly be hacked, it will no longer meet the requirement to take appropriate technical and organisational security measures to protect personal data against unauthorised access (article 5(1)(f) of the General Data Protection Regulation (GDPR)) and may face fines. Indeed, in a quantum-driven world security standards that are appropriate today may no longer meet the above criteria tomorrow.
Organisations need to establish enterprise-wide procurement policies that require cryptographic flexibility and provide the ability to quickly switch to newer and more secure algorithms. The inclusion of cryptographic agility in the system is therefore essential. This is also important for companies active in the financial, energy, transport or health sectors that fall under the scope of the Directive on Network and Information Security (NIS), and that are subject to security standards aimed at the wider protection of systems and communication networks, which are even stricter than those laid down in the GDPR as they go beyond mere personal data.
The improved processing possibilities offered by quantum computers will certainly be used to process personal data in an even more sophisticated way, creating new challenges for privacy.
According to article 5(1)(a) of the GDPR, personal data must be processed lawfully, properly and in a transparent manner. The principle of due diligence is seen as an overarching principle that has laid the foundations for other data protection requirements. The principle of lawfulness of processing states that data controllers must comply with other legal obligations, even outside the GDPR. The principle of transparency is a logical consequence of the requirement that personal data must be processed “properly and lawfully”, being based on the idea that even if the data subject has no control over its data, it should at least be informed when its data are processed.
While the GDPR currently forbids that a data subject is subject to a decision solely based on automated decision-making, including profiling, legislators will have to carefully verify the compliance of quantum IT systems with this prohibition, as it is expected that with the power of quantum computers such automated decisions could become more frequent. This will also strengthen the requirement for transparency and “explainability” of the decisions made.
Some argue that quantum technology will be capable to predict the outcome of court cases. This way, the legal profession would transform from being based on human reasoning to being supported by powerful technological tools
Under certain conditions, conduct by a company which holds a dominant position in the market can be found abusive and therefore be prohibited by competition law (article 102 of the Treaty on the Functioning of the European Union (TFEU)). As the company that will be the first to win the race of the greats will benefit enormously from quantum technology, and despite the many challenges facing quantum developers, major technology companies such as Google, IBM and Microsoft are investing many millions in quantum technology. This may lead to the dominance of certain players, which already hold very powerful positions (eg, Google), whereby it is to be expected that the competition law issues that are already very prevalent today will occur even more, and probably not only in the area of dominance. After all, larger technology companies will try to take over many of the smaller innovative players in the market within a short period of time. This will raise fundamental questions regarding company acquisitions: will the legal framework prove sufficient to counteract an excessive concentration of quantum technology, which could make it inaccessible to others?
Perhaps a quantum computer could be considered an “essential facility”. In competition law, the doctrine of “essential facilities” may apply to a dominant player who unreasonably denies access to its infrastructure or technology to a player who does not have such facilities. Such a refusal of access may prove to be abusive under article 102 TFEU if:
- the refusal of access is likely to prevent any competition in the market;
- access is essential or indispensable for the applicant to carry out his or her activities; and
- access is refused without any objective justification (eg, in an arbitrary or discriminatory manner).
It is likely that the first company to have quantum computers will be reluctant to share this technology following large investments. However, if this company proves to be dominant, it will need to refrain from an unjustified refusal of access to this superior technology in order to avoid antitrust sanctions, such as the requirement to grant access or behavioural remedies.
The introduction of cloud computing services has already brought a first major change in legal practice with the introduction of liability clauses in cloud contracts for data loss or failure of the cloud system. These provisions are crucial for companies that no longer install software locally to run their computers, but rather use cloud computing where the hardware, software or data is made available from a distance over a network on demand and according to their needs.
In the world of renting and leasing as a new way of buying, quantum computing could also become available in the future in the form of a “subscription” so that companies will not have to buy expensive hardware, but will use the advantages of quantum computers by paying for quantum subscriptions.
This is slowly becoming reality, as Amazon has launched its “quantum as a service” in December 2019 by creating “Amazon Braket”, a fully managed service which must make it possible for scientists, researchers and developers to build, test and run quantum computing algorithms. Interestingly, this service is not based on Amazon’s own hardware, but is provided by D-Wave, IonQ and Rigetti.
Once again, the IT contract lawyer will have to search how, eg, one can contractually formulate the liability for data loss due to an error made by quantum computers, or how in general it will be possible to cover for errors that will be very difficult to predict due to the complexity of this technology. Service level agreements will need to be updated taking into account the superior performance of such computers, and it will be crucial to find a way to prove and compensate for inferior performance of a quantum computer.
The liability of self-learning computers could become an issue as quantum computers may significantly improve AI. Will it be the supplier of the system, the person who entered the initial data or, even if it sounds crazy for now, the computer itself that will be held liable for errors?
Quantum technology will also impact the legal profession and bring about new “legal tech”. Some expect that quantum computers will perform complex tasks on a large scale with an efficiency and speed that surpasses human intelligence, including that of the best lawyers. Such powerful tools could automate legal reasoning, eg, by automatically drafting contracts or conducting a due diligence process in the context of M&A. Some even argue that quantum technology will be capable to predict the outcome of court cases. This way, the legal profession would transform from being based on human reasoning to being supported by powerful technological (auxiliary) tools.
Law firms, like many other companies, should also have to rethink their information security, as their systems are currently protected by encryption that can easily be decrypted by quantum computers. As holders of often highly sensitive information, they will have to prepare themselves for future IT threats and draw up an appropriate risk management plan, taking into account the ever-changing technologies.
Due to the far-reaching impact of quantum technology, a well-developed policy framework must create global standards. A country-specific oversight may be insufficient, as quantum technology can entail dangerous applications comparable to the power of nuclear weapons, such as breaching today’s encryption methods and exposing all essential facilities to substantial security risks. A global policy approach at the level of the UN, the WTO or the G7 is vital, and it is time to begin the dialogue. A quantum computing enforcement regime should set clear and enforceable prohibitions for improper use, while securing access for justified purposes to all stakeholders. Due to its massive capabilities, it is worth considering whether quantum computing technology should be limited to solving humanitarian issues only. The nuclear policy regime may offer a model for policing dangerous yet vital capabilities.
In any event the dialogue on whether and how quantum technology must be regulated should start now, whereby both the risks and opportunities of this new technology should be taken into account. It should be considered whether this should be achieved through traditional “command and control” regulation or rather through alternative regulation, or methods, such as self-regulation and co-regulation.
Quantum computers promise enormous technological progress, which will also have an impact on many legal domains. The risk of hacking into the current encrypted networks will mean that personal data will no longer be sufficiently protected, creating new challenges for data protection and feeding the need for a strong GDPR. In the field of competition law, the large technology companies, which have enormous resources to develop quantum computers, could face issues if they abuse their dominant position in accordance with article 102 of the TFEU by, eg, refusing access to this new technology. Finally, contract law should also rethink the potential liability issues when quantum computers fail.
It should also be considered how quantum technology needs to be regulated in the future: global or national regulations; “command and control”; or self-regulation and co-regulation.
Evidently, other areas of law will also be affected by this technology, so it will need to be closely monitored by IT lawyers. But the legal profession itself could actually benefit from it, as long as it also understands its dangers.
This contribution intends to issue a first invitation to the lawyers of today to reflect on a technology that may have a significant impact on the future. Lawyers should at all times be aware of such changes, provide insight, and even guide technology developers.
It is not easy to write about something that is still being developed and that is so complex, with many potential applications and hypothetical issues. But it remains beyond doubt that, where the law usually follows developments, the lawyer must always be aware of the latest technology and come up with creative legal solutions, as will also be the case for quantum technology.
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