Introduction

Quantum technologies (QT) belong to the foreseeable future. Most of the quantum technologies are of dual use (Krelina, Reference Krelina2021). The predecessors of this round of quantum revolution have underpinned many others technologies such as x-rays, MRI scans, nanotechnology (Carson Reference Carsonn.d.). The second quantum revolution is poised to enhance measurement capability, sensing, precision and computation power. The scientific development and technological deployment is taking place at such a rapid pace that many governments have started policy initiatives (Quantum Technologies Flagship), allocated money and private companies have stepped in to fulfill roles needed to get QT to fruition (Seskir et al., Reference Seskir, Korkmaz and Aydinoglu2022). At the same time, the technology is neither completely technically viable nor widely commercially available. Yet the attention of funding agencies is shifting in the present moment (Seskir and Aydinoglu, Reference Seskir and Aydinoglu2021).

The concerns and benefits related to the social viability and impacts of such technologies are the natural next questions. QT are alternately at the stage of development and deployment and have not completely diffused to cause individual impacts. However, their emergence and points for legal (non)intervention are framed using future scenarios of such impacts. Amidst the current strains for thinking about QT, this article will explain the resultant dichotomy of policy solutions which emerges if a realistic outlook to the historical trajectory of technology development and distributed infrastructures is not adopted.

This article is structured to introduce the visions and expectations being constructed for QT. These constructions are then viewed against the extant frameworks of Anticipatory Governance, Responsible Research and Innovation and Quantum Ethics which are being employed to delineate the boundaries for the way society should engage with QT. This goes in hand with the uncertainties that surround this technology and the ability of law to account for uncertainties in some form. This article then seeks to broaden the scope of legal enquiry and highlight the shortcomings of the current governance solutions. For the same, a case of quantum computing is focussed upon where the access divide has been framed to be resolved by enhancing cloud access or encouraging open development of technology. It concludes by indicating the extent of application of such solutions, facing the obstacles of entrenching digital power and reducing the scope of a comprehensive legal framework.

Construction of the future

The temporal dimension of futurity is incorporated in different disciplines in various ways. Economics treats the future statistically to develop models and decide present policy making. Similarly sociology makes use of notions such as beliefs, goals, sense-making, meaning or ideas to express outcomes by including anticipated effects as a causal factor (Beckert, Reference Beckert2016). Even technological design seeks to predict the future and fold time and space in some form such as the use of algorithmic predictions which seek to present the future. Law also accounts for the future. For instance, future contracts can be upheld by contract law while wager contracts can be illegalized. Insurance and the law applicable to it structure risks and account for the future. In this case, the law upholds certain principles and values and accounts for the future as a corollary. Law is also involved in future making, say, by constitutionalizing the society which lays down the vision for its future. In essence, law is made for the future, at all points of time (even when attempting to undo past injustice or learning from it).

Yet the future is shrouded in mystery and uncertainty. At the end of the day, the future is the future, it is unknown and unobtainable (Brown and Michael, Reference Brown and Michael2003). The present attempts to estimate or account for it in some form. At the same time, it is almost inconceivable that the future of a technology is spelled out. Come to think of it, scientific research can be undertaken without attaching itself to the future. Technology can be developed without a vision, just for its own sake. This is not to suggest that it is a preferable position but to highlight that such predictions must have a role or utility as effort is expended on creating them. A vision is laid out for many reasons including to instill a sense of legitimacy for technologies and their responsibilization (Urueña, Reference Urueña2021).

Some insights can be drawn regarding the specific temporal aspects of the trajectory of development, deployment and diffusion (Liebert and Schmidt, Reference Liebert and Schmidt2010) of science and technology through the sociology of expectations. This field posits that expectations shape technology which are fictional (Beckert and Suckert, Reference Beckert and Suckert2021). These visions and expectations perform a constitutive role because they coordinate technical and social communities horizontally and across the vertical dimensions of organizations (Borup et al., Reference Borup, Brown, Konrad and Van Lente2006). They even allow an understanding of the society of the present (Suckert, Reference Suckert2022).

A part of the future of QT is uncertain. The uncertainty vests in how it will finally take shape and not whether it will. It will arise in some form, with the questions of how and when left to a hopeful synergy between science and social science, interspersed by business and strategic realities. While it can solve complex problems, its reality is marked by a noisy and error ridden existence which does not make it a viable option for classical problems. As Grinbaum explains, striking a balance between the formalism of quantum theory and a pragmatic interest in QT will require an element of myth making (Grinbaum, Reference Grinbaum2017). A few multifaceted expectations for QT are outlined below:

‘Inevitable arrival of the quantum revolution due to the end of Moore’s Law.’ (‘After Moore’s law | Technology Quarterly | The Economist’ n.d.)Footnote ¹

‘Quantum science is something magical which has contributed to the development of some key technologies, basis of nature, shrouded in incomprehensibility.’ (Coenen et al., Reference Coenen, Grinbaum, Grunwald, Milburn and Vermaas2022)

‘It is estimated that the market size will surpass $450 billion annually in the next decade.’ (Bayerstadler et al., Reference Bayerstadler, Becquin, Binder, Botter, Ehm, Ehmer, Erdmann, Gaus, Harbach, Hess, Klepsch, Leib, Luber, Luckow, Mansky, Mauerer, Neukart, Niedermeier, Palackal, Pfeiffer, Polenz, Sepulveda, Sievers, Standen, Streif, Strohm, Utschig-Utschig, Volz, Weiss and Winter2021)

‘Proposed use cases of combinatorics, optimization, machine learning and simulation and simulation of drugs, materials.’ (Bova et al., Reference Bova, Goldfarb and Melko2021)

‘The US and China are in a quantum arms race that will transform warfare’. (Giles, Reference Giles2019)

These expectations (not an exhaustive encapsulation) highlight the promise of QT to rein in prosperity and military supremacy. It is pitched as capable of solving nature’s fundamental problems, rejigging the world order and continuing innovation cycles. These technologies straddle the lab and corporate meetings, with close involvement of states and startups alike (Seskir et al., Reference Seskir, Korkmaz and Aydinoglu2022). As expectations are sociologized, it is observed that they lay a linear progression of QT, replete with revolutionizing potential and the need for immediate uptake for a competitive edge.

Various frames of governance

Cognizant of the future of QT, in terms of the vision and expectations surrounding them and the uncertainty that the technologies posit, social science is attempting to make inroads through the usage of frameworks such as Anticipatory Governance (AG), ethics and Responsible Research and Innovation (RRI) in the lab (Inglesant et al., Reference Inglesant, Ten Holter, Jirotka and Williams2021; Ten Holter et al., Reference Ten Holter, Inglesant and Jirotka2023). This is important because QT depend on public funds and goodwill for their development and use. To that extent, engagement with the public stakeholders transparently during all phases is an important ethical imperative (Coenen et al., Reference Coenen, Grinbaum, Grunwald, Milburn and Vermaas2022).

Anticipatory Governance is defined as a broad-based capacity extended through society that can act on a variety of inputs to manage emerging knowledge-based technologies while such management is still possible (Guston, Reference Guston, Fisher, Selin and Wetmore2008). It seeks to engage with the public to create a bridge between the technoscience being developed in closed spaces and the wider audience outside which makes sense of it in some form. It is also born out of an attempt to resolve the Collinridge Dilemma which is a characteristic feature of most technologies, to build capacity for a technology to appear in the future (Guston, Reference Guston2014). It acts through reflection and reflexivity to engage with multiple future scenarios of an emerging technology (Guston, Reference Guston2010). As a form of governance which seeks to focus on the future, it incorporates different methods to do it. One such method is the RRI framework.

RRI is a concept building upon AG which allows inclusion and responsiveness at the development stage of a technology (Stilgoe and Guston Reference Stilgoe and Guston2016). The necessity and influence of these techniques can be gauged from the fact that historically, Technological Assessments were limited to external consultancy regarding technologies and their future, completely detached from their development. Avenues of participation were sought and implemented in the form of AG and RRI (Urueña, Reference Urueña2021). In the case of QT, RRI is being used in a varied manner across different settings, leading to insights where key questions of access, divide and permissible use cases are being discussed (Ten Holter et al., Reference Ten Holter, Inglesant and Jirotka2023). Since the adoption of this method is not mandatory, it arises as ethically good conduct. Due to its nuances and breadth, it is sought to be institutionalized, made more granular with a comprehensive and cohesive approach in place such that it can anticipate and reflect on possible futures (Inglesant et al., Reference Inglesant, Ten Holter, Jirotka and Williams2021).

Quantum ethics are also shaping up to be a useful field with dialectical developments which help to characterize these technologies as familiar advancements as well as draw out their unique characteristics (Perrier, 2022; Possati, Reference Possati2023). A key requirement that has been articulated regarding distributional ethics is the quantum divide, resulting in an imbalance between populations with advanced quantum technology (and therefore secure communications) and those without (Possati, Reference Possati2023). Another ethical exposition relates to the necessity for openness and access to ensure inclusion, equity and beneficial use for all, to move away from the familiar terms of competition and supremacy. This allows key interjection and an opportunity to learn from the past and break away from the continuity which currently afflicts the development of this technology (Coenen et al., Reference Coenen, Grinbaum, Grunwald, Milburn and Vermaas2022).

Lastly, many regulatory solutions are also being discussed to think of the future of QT using existing laws (Derose 2023; Kop and Brongersma, Reference Kop and Brongersma2021) or technology neutral laws (Moses, Reference Moses, Marchant, eds., Marchant and Wallach2020) or soft law (Johnson, Reference Johnson2023) or adopt risk based approaches (Dekker and Martin-Bariteau, Reference Dekker and Martin-Bariteau2022) for greater dynamism. As the final shape of the technology and its impacts on various stakeholders arise in the realm of uncertainty, law (hard laws) and law makers are hesitant to intervene. The lack of factual clarity is tied together with the pacing problem which admits of the doubts over the timing of a legal response to regulate new technologies (Marchant et al. Reference Marchant, Allenby and Herkert2011). As the lack of legal intervention plays an important part in the governance of new technology, it effectively socially shapes the environment with respect to the particular technology (Bernstein, Reference Bernstein2006). Such responses have been seen before, especially in the application of legal frameworks to new technologies. Technological disruption often leads to legal uncertainty in the form of a gap, statutory inapplicability and concerns regarding regulatory jurisdiction (Crootof and Ard, Reference Crootof and Ard2020). Yet the ability of law to be malleable enough to account for such changes forms a fundamental part of technology law (Ard, Reference Ard2022).

The frameworks touched upon above contribute to the discursive development of QT, in isolation and in combination with each other. They are intricate designs that focus on the new challenges which emerge from the use of QT. This may account for a part of the story, especially when one looks at the entire apparatus which is available and required for governance of emerging technologies. Against the background of the vision and expectations for QT, combined with the various ways which are being thought of to prepare for its governance, the contribution of law can arise beyond thinking of the impact of QT. Technological development has many dimensions which involve legal and ethical questions. These questions can infuse the discussion surrounding the broader frame of development of QT as well. This is also important because the various QT have not been broken down into their several technical features to be synthesized with formal elements of ethical theories (such as establishing concepts of duties, responsibilities, rights, etc. and then articulating how quantum technologies may affect or alter such normative claims or how ethical constraints might be encoded within quantum information processing protocols themselves) (Perrier, 2022). If QT is looked at in isolation, there may be certain nuances which can be missed, as will be highlighted next. The following analysis looks at the solutions posed to address broader concerns and the values that they further.

Unpacking policy solutions

QT poses certain risks because it is powerful and opaquely developed by a few players. Further, the uses to which it will be put are unknown. There is increasing consensus amongst the governance frameworks touched upon above that access to QT will decide the trajectories of progress for its users for the times to come. This leads to the problematization of access or the lack of it as an access divide (Perrier, 2022). It is also referenced to think about the broader social canvas of the development of QT (Ten Holter et al., Reference Ten Holter, Inglesant, Srivastava and Jirotka2022) along with repercussions for distributive justice (Possati, Reference Possati2023). These concerns have been raised before for other kinds of technologies such as the internet, telecommunications, nuclear technology for associated social goods such as information, communication and energy. Different legal regimes and frameworks have been employed to address these concerns, in the realm of a specific technology. These are credible concerns with legal remedies and policy solutions. However, these ideas face an obstacle in terms of their practical operationalization as they continue to create closed and inaccessible systems.

A nuanced and deeper exploration of the problem and the solution follows, using the case of quantum computing. It is chosen as an example as it is replete with policy suggestions to address the access divide. The current reality of quantum computing (QC) is marked by its organization as a service (Seskir et al., Reference Seskir, Umbrello, Coenen and Vermaas2023). As a stable hardware is yet to be standardized and commoditized, its many variants are offered remotely to users. This implies that a user can access computing through the web. This access arises in the form of a service provided by companies such as IBM, Microsoft, Google, Amazon which can range from a simulation environment to the use of a connected qubit processor (QCaaS).Footnote ² The remote service also makes it seemingly easy to access QC using just an account and a subscription to pay for the service.

The instruments under discussion relate to the access mechanisms to provide QC, in its final form and in its stage of development. Solutions range from subsidizing access for certain use cases to fostering openness in its research and development. However, these measures engage contentious actors and digital infrastructure providers which are interested to create pervasive ecosystems than accessible ones.

Conclusion

If a future of a technology is spelled out at any given moment then some key questions arise such as why is it framed and by whom? Through some media and devices, expectations are generated (Meyers and Van Hoyweghen, Reference Meyers and Van Hoyweghen2018). The sociotechnical imaginaries are co-constitutive with decision making and policy making concerns (Paris et al., 2023) which provide the way for law to take cognizance of the uncertain future. It is important to highlight the uncertainty and tenuousness of these futures so that the application of law can be tempered to that extent. The future will most likely change, it may or may not have been predicted truthfully and it is a matter to be resolved by time. However, inaction at the current moment will also imply that the space for intervention will be limited, especially in contexts of scientific development which assume linearity (Liebert and Schmidt, Reference Liebert and Schmidt2010). The visions for QT are universalising in their nature but loudly silent about the questions of needs and abilities which could motivate the future path of this technology.

As a future is imagined, and constructed for QT, the article aims to ground the technology in legal realities and commercial incentives which have reduced the regulatory space considerably for many technologies of the past. QT could be bracketed with other emerging technologies and their predecessors for specific technologies (such as sensors) to observe the path taken for their governance and the success and pitfalls therein. The points of continuities and discontinuities of various QT with respect to existing technologies for which quantum is the next stage of improvement could be identified to understand the applicable legal regime. This allows legal enquiries to understand if the characterization of emerging technologies can include its newer forms, if these frameworks can be alternately imagined to make space for public values, deliberate upon their emergence and not just think of the impacts of such technologies.

Due to the entanglement between quantum computing and digital infrastructures, its governance has the potential to be driven and decided by a handful of private actors. As a remote service, QC has become another variant of a digital product that distributors can provide globally. Moreover, knowledge of the computing market by these entities ensures that new hardware or qubit providers also necessarily associate themselves with this infrastructure. Knowing what we do, the use of global, regional and national laws to make these actors and infrastructures the sole pathway of provision and access to these QT is a paradoxical situation. This is because it closes the pathway for democratic deliberation of such technologies and even the functioning of the social science frameworks discussed above. The legal operationalization of the identified concerns without a focus on the actors, expertise and rights involved leads to unjust outcome in terms of distributive justice. Perhaps, it is in this case, a dystopian scenario can be drawn out which will be very close to reality.

Another practical panacea is openness which can bridge technological inequalities, especially in terms of access and production of QT to a certain extent. However, the multifaceted nature of openness is highlighted which questions its effectiveness as a comprehensive solution to address the concern posed by QT, namely, the access divide. Currently, openness has become a key itinerant to create a closed ecosystem. Modern digital technologies are built using the ethos of modularity, generativity and stacks. They ensure easy programmability and building of one innovation over another. As a corollary, this design tips towards consolidation and reduces the space for contestation. Viewed from this perspective, it is necessary to be clear about how openness functions, in the creation of QT ecosystems.

For law, especially after its turn away from a welfarism in the late twentieth century, it is hard to imagine and conceive of infrastructures (Kjaer Reference Kjaer2022). This is a time when infrastructures have moved from the tangible to the intangible, from the material to the immaterial and it competes with law in the domain of social ordering (Joyce, Reference Joyce2023). This can also be seen in the change in regulatory activity from telecom to internet to platforms where sectoral regulations have moved to object and impact-based piecemeal scrutiny alone (Cohen, Reference Cohen2019). Accounting for these strains, a legal framework for QT can parse through its materiality and interaction with infrastructures to think of its developers, providers, beneficiaries, key actors and governance.