The implications of quantum information technology for cybersecurity and strategic stability seem worrisome. In theory, an adversary with a quantum computer could defeat the asymmetric encryption protocols that underwrite internet security, while an adversary using quantum communications guaranteed secure by the laws of physics could deny intelligence warning of surprise attack. To assess these claims, this article first develops a general political logic of cryptology grounded in the bargaining model of war, which understands uncertainty as an important cause of war and institutions as an important source of information. Cryptology of any technological vintage is shaped by both aspects of this logic, with ambiguous implications for strategic stability. In practice, strategic interaction between intelligence competitors using real quantum systems implemented in fallible human organizations will mitigate the impact of quantum computing. The upshot is that the revolutionary scientific innovation of quantum computing will probably have only marginal political impact, in part because the fields of cryptology and computing have already undergone important transformations in recent decades.'Digital Switzerlands' by Kristen Eichensehr in (2019) 167 University of Pennsylvania Law Review (Forthcoming) comments
U.S. technology companies are increasingly standing as competing power centers that challenge the primacy of governments. This power brings with it the capacity to bolster or undermine governmental authority, as well as increasing public demands for the companies to protect users from governments. The companies’ power raises serious questions about how to understand their role. Scholars have proposed varying conceptions, suggesting that the companies should be understood as public utilities, information fiduciaries, surveillance intermediaries, or speech governors. This Article takes up another possibility, one suggested by the companies themselves: that they are “Digital Switzerlands.”
The companies’ claim to be Digital Switzerlands encompasses two ideas: that the companies are on par with, not subordinate to, the countries that try to regulate them, and that they are in some sense neutral. This Article critically evaluates the plausibility of these claims and explores how the companies differ from other powerful private parties. The Digital Switzerlands concept sheds light on why the companies have begun to resist both the U.S. and foreign governments, but it also means that the companies do not always counter governments. Understanding the relationship between companies, users, and governments as triangular, not purely hierarchical, reveals how alliances among them affect the companies’ behavior toward governments. But the companies’ efforts to maintain a posture of neutrality also carry a risk of passivity that may allow governmental attacks on users to go unchallenged.
Turning to the normative, the Article proposes several considerations for assessing the desirability of having companies be Digital Switzerlands. Does the rise of the companies as competing power centers benefit individual users? Does the companies’ lack of democratic attributes render them illegitimate powers? If the companies claim the benefits of the sovereign analogy, should they also be held to the public law values imposed on governments, and if so, how? And if there is value in the companies acting as Digital Switzerlands, how can this role be entrenched to prevent backsliding? The Article offers preliminary answers to these questions, with the knowledge that the answers may well evolve along with the companies’ self-conception.