By Mauritz Kop
Quantum law is being written before quantum technology has fully arrived. That is precisely the point. Once quantum computing, sensing, and networking systems become embedded in procurement systems, security frameworks, and commercial infrastructure, the foundational legal choices surrounding patents, export controls, standards, and disclosure will be much harder to unwind. The better moment to build these rules is now, while the field remains fluid enough to govern.
Contemporary policy debates frequently treat intellectual property (IP) and national security as distinct domains, but in practice they operate as a single, entangled legal control plane. For instance, a patent claim for a quantum compiler may trigger subject-matter eligibility questions under Alice Corp. v. CLS Bank International.[1] Disclosure may also raise research-security concerns if it reveals sensitive technical methods that intersect with federal export-control regulations.[2] Likewise, publicly funded breakthroughs are governed not only by the Bayh-Dole Act, but also by federal acquisition regulations (FAR and DFARS) which shape who may use, disclose, and commercialize the resulting software and technical data.[3]
Quantum governance should therefore reject both romantic technological openness and reflexive, indiscriminate restriction. A more sustainable equilibrium is security-sufficient openness: preserving the cross-border scientific exchange, market scale, and interoperability necessary for innovation while constraining flows that would materially accelerate adversarial military or intelligence capabilities. The challenge is fundamentally one of dual-use governance, because many of the same quantum capabilities that promise civilian benefits in computing, sensing, health, and secure communications may also confer strategic advantage in defense. Quantum’s dual-use character is not novel in structure: as with nuclear physics before it, scientific advances grounded in quantum mechanics may carry both civilian promise and geopolitical consequence.[4] That equilibrium can be operationalized through an LSI test. As developed in the longer article from which this essay is adapted, the framework asks whether a given state intervention is the least trade-restrictive, security-sufficient, and innovation-preserving measure available.[5] The legal inquiry is not simply whether a government possesses a restrictive tool, but whether it is deploying the narrowest effective one.
Applying this framework is increasingly urgent as the quantum control plane transitions from theory to binding law. The National Institute of Standards and Technology finalized its first post-quantum cryptography standards in August 2024, anchoring future federal procurement.[6] The Department of Commerce added quantum-related items to the Commerce Control List in September 2024, and the Department of the Treasury’s outbound investment security program, effective January 2025, restricts certain U.S. investments in covered foreign persons engaged in specified quantum information technology activities.[7] Congress is simultaneously revisiting the broader federal architecture: the bipartisan 2026 National Quantum Initiative Reauthorization Act would extend the initiative through 2034, while emphasizing allied cooperation, workforce development, and quantum supply-chain resilience.[8] Governance is also diffusing below the federal level. Ohio lawmakers, for example, are advancing legislation to establish a Frontier Technologies and Quantum Commission, signaling that states also recognize quantum as a domain requiring anticipatory governance.[9] That convergence reflects a broader reality: quantum now sits at the center of strategic competition, yet remains one of the rare bipartisan domains of U.S. technology policy, spanning qubits, PQC migration, skilled labor, fragile critical-mineral supply chains, and mounting concern over IP leakage and theft.[10]
Without a disciplining framework like the LSI test, this rapid regulatory expansion risks establishing a costly Silicon Curtain. Over-securitization suppresses academic publication, standard-setting participation, startup formation, and allied interoperability. Under-securitization, by contrast, allows strategically meaningful capabilities to diffuse into rival ecosystems faster than democratic systems can respond. The legal task, then, is not to choose between innovation and national security. It is to design institutions capable of sustaining both. In the quantum era, durable leadership will depend on whether trusted partners can protect the industrial commons without suffocating the scientific commons upon which that governance architecture relies.
Mauritz Kop is the Founder of Stanford RQT and a Senior Fellow at the Centre for International Governance Innovation. He also serves as a Guest Professor at the U.S. Air Force Academy.
[1] See Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014).
[2] See 15 C.F.R. pt. 774 (2024); see also Commerce Control List Additions and Revisions; Implementation of Controls on Advanced Technologies Consistent With Controls Implemented by International Partners, 89 Fed. Reg. 72,926 (Sept. 6, 2024).
[3] See Bayh-Dole Act, Pub. L. No. 96–517, §§ 200–212, 94 Stat. 3015 (1980) (codified as amended at 35 U.S.C. §§ 200–212); see also 48 C.F.R. § 52.227-14 (2024); 48 C.F.R. § 252.227-7013 (2024); 48 C.F.R. § 252.227-7014 (2024).
[4] See Thomas C. Schelling, Arms and Influence (1966).
[5] See generally Mauritz Kop, The Nexus of Quantum Technology, Intellectual Property, and National Security: An LSI Test for Securing the Quantum Industrial Commons, arXiv:2602.15051 (Feb. 11, 2026).
[6] See National Institute of Standards and Technology, Post-Quantum Cryptography FIPS Approved (Aug. 13, 2024), https://csrc.nist.gov/news/2024/postquantum-cryptography-fips-approved; see also FIPS 203: Module-Lattice-Based Key-Encapsulation Mechanism Standard (2024), https://csrc.nist.gov/pubs/fips/203/final.
[7] See Provisions Pertaining to U.S. Investments in Certain National Security Technologies and Products in Countries of Concern, 89 Fed. Reg. 90,398 (Nov. 15, 2024); see also Exec. Order No. 14105, 88 Fed. Reg. 54,867 (Aug. 9, 2023).
[8] See National Quantum Initiative Reauthorization Act of 2026, S. 3597, 119th Cong. (2026); see also United States Senate Committee on Commerce, Science, and Transportation, Nat’l Quantum Initiative Reauthorization Act of 2026—Section Summary (Jan. 8, 2026), https://www.commerce.senate.gov/services/files/C286164B-8514-44FB-BF92-41DA920854C8; Maria Cantwell et al., Cantwell, Young, Colleagues Introduce Bipartisan National Quantum Initiative Reauthorization Act (Jan. 8, 2026), https://www.commerce.senate.gov/2026/1/cantwell-young-colleagues-introduce-bipartisan-national-quantum-initiative-reauthorization-act.
[9] See Sophia Fox-Sowell, Ohio Senate Considers Bill to Form Frontier Technologies and Quantum Commission, StateScoop (Mar. 19, 2026), https://statescoop.com/ohio-senate-quantum-frontier-techologies-commission/; see also H.B. 650, 136th Gen. Assemb., https://www.legislature.ohio.gov/legislation/136/hb650; Ohio House of Representatives, Ohio House Passes Bill to Establish Frontier Technology & Quantum Study Commission (Mar. 4, 2026), https://ohiohouse.gov/news/republican/ohio-house-passes-bill-to-establish-frontier-technology-and-quantum-study-commission-142422.
[10] See U.S.-China Economic and Security Review Commission, 2025 Report to Congress: Executive Summary and Recommendations (Nov. 2025), https://www.uscc.gov/sites/default/files/2025-11/2025_Executive_Summary.pdf; see also CISA, NSA, and NIST, Quantum-Readiness: Migration to Post-Quantum Cryptography (Aug. 21, 2023), https://www.cisa.gov/news-events/alerts/2023/08/21/cisa-nsa-and-nist-publish-factsheet-quantum-readiness; FBI, Protecting Quantum Science and Technology (Apr. 12, 2024), https://www.fbi.gov/news/stories/protecting-quantum-science-and-technology.