What is Quantum Computing?

Quantum computing is the application of the properties of quantum mechanics to computer systems. For its part, quantum mechanics covers the physical phenomena that are taking place at a very small scale: that ofmolecules, atoms and other sub-atomic particles.

Behind this description lies a simple reality. Quantum mechanics when applied to computer systems can leverage the latter’s power and speed of calculation to a very high extent. The limits posed by computer systems as we know them today would thus be broken.

Nowadays, our computer systems process information by making use of “bits”. Bits are binary information elements: they can be “0” or they can be “1”. Quantum computers do not use “bits” but “quantum bits” (or “qubits”). These quantum bits can be more than just 0 or 1: they can take an enormous number of other different states, at the same time. This information versatility will allow for overcoming current computer systems’ constraints.

Qualifying the quantum revolution as a “game changer”, the European Commission estimates quantum computers as potentially being able to “(…)solve in hours what is currently solved in hundreds of days, if not years.”⁽¹⁾.

Not tomorrow’s science-fiction but today’s reality

Mastering the properties of quantum mechanics isa tremendous challengethat has been faced by the scientific community for a long time.

Over the past century, scientists have been progressively able to understand the fundamentals of quantum mechanics. In the last few years, important progress has been made: scientists can now effectively operate manipulations of a quantum kind. Quantum computing is consequently receiving an increasing attention from (i) industry and (ii) policy actors. In particular:

(i) Many companies are currently building their own quantum computer systems. In this way, Google⁽²⁾, IBM⁽³⁾, IonQ⁽⁴⁾, D-Wave⁽⁵⁾, have recently claimed to have each built their ownfirst ever working quantum computer. Further, numerous private associations dedicated to quantum computing are starting to emerge and quantum computing roles are blooming in the marketplace.

(ii) Public authorities have also dived into the rise of quantum mechanics. In 2018, the EU launched a “Quantum Technologies Flagship”⁽⁶⁾. Funded with a budget of EUR 1 billion, this large-scale EU research initiative supports “the transformation of European research into commercial applications that make full use of the disruptive potential of quantum”. The same year, the EU established the “European High Performance Computing Joint Undertaking” (“EuroHPC”), to develop supercomputing technologies⁽⁷⁾. In 2020, the EuroHPC’s budget was increased to EUR 8 billion and the focus emphasized on quantum computing⁽⁸⁾. In 2021, this resulted in the delivery ofVega, the first EU supercomputer, able to perform “6,9million billion calculations per second”⁽⁹). The same year, the EU finally disclosed its ambition to have itsfirst own effective quantum computer by 2025,stressing that “[t]he EU should be at the global cutting edge of developing quantum computers”⁽¹⁾.

A technology that will bring countless benefits…

The interest of the private and public sectors around quantum computing resonates with the ground-breaking benefits that quantum computers will offer, once the latter will be fully operational. Some of these benefits will concern the following sectors:

• Healthcare. A multitude of upgrades will be made possible: enhanced medical diagnosis, advanced analysis of existing sicknesses, development of new medicines or improvement of knowledge in areas such as genetics.

• Mobility. The complexity of certain road, air and sea traffic flows will be surmountable. Complex traffic optimisation will become possible, leading to faster travels and less traffic congestion.

• Big data. The amount and value of information extractable from data will increase. This will take the opportunities of “big data” to a new level. This benefit will then pass on to the sectors or technologies that rely on these great flows and analysis of data.

• Climate. Meteorological predictions will find an unprecedented level of accurateness and for longer time frames. Studies and modelled projections on climate change will also be further refined.

• Logistics. Through logistics’ optimisation, manufacturing, production and delivery processes will become much more efficient. This will result in substantial time and cost savings.

• Artificial intelligence.The self-learning ability of quantum computer powered algorithms will improve as they will ‘digest’ data and deep-learn faster. This will make AI solutions more flexible, reactive and robust.

…while raising challenging and disruptive legal issues

The legal issues that quantum computing will raise are less discussed. Still, these will be significant and will certainly lead to intense debates in the coming years. We summarise the most striking ones.

1)Competition law.Any organisation that will own (or have access to) a quantum computing system might likely have a commercial advantage over those of its competitors that do not. In which circumstances could this lead to such an organisation having a dominant position,e.g.within the meaning of the Treaty on the Functioning of the European Union (“TFEU”)? Conversely, to which extent could market stakeholders relying on competitors’ quantum computing systems find themselves in a dependency position? More generally, how should eventual market distortions be addressed in light of existing competition law requirements? One can anticipate a lot of attention being paid to this matter.

2)Data protection law.Quantum computing will allow more numerous and sophisticated processing of personal data. In the EU, such processing will be subject to the General Data Protection Regulation2016/679 (“GDPR”) and complementary national laws on personal data protection. One can wonder whether these current legal instruments will still prove adapted enough forquantum computer powered processing. In this way, GDPR requirements relating to profiling, automated decision making and large-scale data processing might prove unsuitable and/or obsolete. In addition, certain core GDPR principles such as data minimization, fairness and transparency will be put to a tough test.

3)Patent law.The amount of quantum computing-related patent applications is rapidly increasing. The European Patent Office (“EPO”) estimates there were 80 in 2020, underlining a 300% annual growth rate⁽¹⁰⁾. This understandable trend will go together with growing needs for (specialised) application legal support. One can also expect numerous legal disputes relating to patent claims, ownership and unauthorised uses. On top of that, the licensing and the transfer of quantum computing related IP-rights will likely lead to intense negotiations and comprehensive contracts.

4)Cybersecurity law.The advent of quantum computing will find a contradictory echo on the side of cybersecurity. One might observe an increase in cyber threats concurrently with the further development of existing security standards to counter them. By means of an example, cryptography techniques used to protect information could face the risk of being more easily broken while also enjoying an increased protection threshold. Quantum computers could be used by cybercriminals to carry out unlawful activities with greater frequency and damage, but they could also help in better detecting and preventing such threats. The question arises whether existing cybercrime legal instruments and cybersecurity requirements will remain adequate in light of these developments.

5)Contract law.Quantum computing will trigger changes in existing contractual dynamics:

• Liability and warranty clauseswill have to address the rarity of quantum computers and their still fledgling operationality. E.g. regarding malfunctions due to unknown defects.

• The involvement of IT expertsduring negotiations and contracts drafting will often be critical. E.g. regarding the setting of service levels for the execution of quantum based IT services.

• Regulatory requirementswill find a common ground of application, given the diverse stakeholders that will be involved in the creation, financing and use of quantum computers (public institutions and organisations, non-profit organisations, private companies, public-private partners). E.g. arrangements regarding public procurement, transparency and audits.

• The marketingof quantum-based goods or services will require specific attention being paid to applicable B2B and B2C regulations. Subscription terms and service agreements will have to be sufficiently fair and transparent. E.g. regarding conditions for access and restrictions of use.

The next technology train will be quantum: get on board on time

We could describe quantum computing today as a much increased and soon-to-be operational computing power offering immense opportunities and bringing both practical and legal pitfalls.

In the same way as Big Data, Cloud Computing, Artificial Intelligence, the Internet of Things and Blockchain are currently shaping the digital world, Quantum Computing has the potential to revolutionise it. While it will still take time before this potential can be fully harnessed, there is a definite interest in starting toreflect about what the upcoming arrival of Quantum Computing will bring.

In this way, several actions can already be undertaken by organisations that do not want to be caught unaware by quantum computing:

• Monitoring the progress made by concerned stakeholders, in terms of the development and commercialisation of quantum computing systems;
• Monitoring the coming policy and legislative developments from the EU and national authorities in this area;
• Identifying your organisation’s goods and services that could be affected by or benefit from quantum computing solutions;
• Analysing your organisation’s internal aspects and processes that could be put at risk from a cyber-security perspective;
• Gaining a more thorough understanding about the technical specifics of and legal challenges raised by quantum computing.

Consider taking these steps on time to tackle quantum computing’s opportunities and challenges.