The exponentially accelerating “disruptive” innovation of emerging technologies appears to be outpacing the United States legal system and international legal and regulatory regimes. ¹ As society begins to gain a firmer grasp of classical computing, incoherence in current regulations generates confounding side effects. ² Specific examples of the inability of existing infrastructure to adapt to modern needs include outdated modes of strategic intent and lack of communication across interest groups. Policymakers and lawyers have also shown incapability to adapt to an increasingly digital environment. ³ Adapting policy to minimize these side effects will become increasingly important as more powerful computing technologies, such as quantum computing, enter the market. ⁴

As quantum computing rapidly gains traction after decades of scientific development, current approaches to digital technology standards face imminent challenges. In 2006, a company called D-Wave® received the first patent for a working quantum computing system. ⁵ Since then, quantum computing has steadily emerged at the forefront of emerging technologies. Specifically, quantum computing portends a new era of technological capabilities, by providing the capacity for faster calculations and higher computing complexity. ⁶ Some of these new capabilities will pose immediate security threats. ⁷ While many of these innovations increase the stakes for regulation, similar technological advances capable of creating security threats make it paramount for the United States, and the rest of the world, to be proactive in addressing cybersecurity issues posed by quantum decryption techniques. Specifically, policymakers must answer questions revolving around the allowable degree of technology transfer across industries and abroad, allowable (and conversely illicit) end-use applications, and how critical legal guardrails should be enforced, both nationally and globally.

In the case of quantum computing, the impacts from ill-fitting regulations range from inefficient to deleterious. In the most benign cases, application of the existing legal and regulatory framework may be onerous or result in vague definitions that do not match understood terminologies used by the technology community. ⁸ However, lapses with more gravitas could have dire national security consequences. ⁹ Inability to develop regulation for post-quantum encryption could leave critical infrastructure or classified information exposed. ¹⁰ Overly strict export controls may force quantum talent to move abroad, resulting in significant economic losses. Moreover, existential threats to the viability of the American legal system may result from insurmountable technological debt, and corporate inertia to adapt business models to accommodate legitimate public interest concerns. ¹¹ Meanwhile, the increasingly influential role of high-technology firms and other private sector members limits the amount of oversight that the government can provide in regulating technology development. ¹²

The issues posed by quantum technologies are already on the government’s radar. ¹³ One example of growing policymaker understanding is the enactment of the National Quantum Initiative Act in 2018. ¹⁴ Under the Act, the Director of the National Institute of Standards and Technology (NIST) “shall allocate up to $80,000,000 to carry out the activities under [the Act] for each of fiscal years 2019 through 2033.” ¹⁵ Various governance funding and resource allocation mechanisms have supplemented these funds, including the establishment of new National Quantum Research Centers and the Quantum Economic Development Consortium. ¹⁶ Similar efforts by other national governments have paralleled such initiatives. ¹⁷

But the landscape of quantum computing will be an incredible challenge for the government to take on. ¹⁸ Not only are national governments around the world engaging in a “space race” ¹⁹ of sorts to achieve “quantum supremacy,” ²⁰ but there has also been a monumental shift in the U.S. governments’ role as an innovator. ²¹ And, despite the relatively “far-off” (i.e., five to ten years) timeframe for early quantum technologies, many view the government’s current commitment to the technology as insufficient. ²² For instance, the United States’ commitment to invest $1.1 billion in quantum computing pales in comparison to China’s investment of more than $10 billion into its own research facility. ²³

But funding is not the only concern to a healthy and prosperous future for quantum computing. In fact, government funding may soon be dwarfed by private sector investment as potentially lucrative applications begin to emerge.²⁴ The government must create a regulatory environment that facilitates early innovation while providing the foundation for a more robust framework to develop as the technology becomes more sophisticated. The government must also find an appropriate balance between national security and international harmonization. Finally, and maybe most important, the government must do better with quantum than with traditional computing to understand what eccentricities may result from the diverging interests between the public and private sector.²⁵ Only by understanding the intrinsic value of the technology can the government look to the future independently of industry projections to see the blind spots that may develop in our national approach.

This Article will discuss one subsection of the quantum computing landscape—post-quantum cryptography. ²⁶ While there are many more considerations possible to extend the scope to other applications, ²⁷ the goal of this Article is to determine what can be extrapolated from the regulation of digital computing, as well as current policies set out for quantum computing, to best facilitate innovation in quantum cryptography. While the government may no longer need to play a primary role in cutting-edge innovation as it did during the space race and other massive scientific endeavors, it needs to be a more cunning consumer of technology if it wants to let industry take the reins. In that sense, this Article examines the government’s approach to regulating digital technology by focusing on its lack of independent scientific awareness in working with industry to develop effective regulation.