QUANTUM BITS OF LIGHT: THE FUTURE OF QUANTUM KEY DISTRIBUTION UNDER EXPORT ADMINISTRATION REGULATIONS AND THE FIRST AMENDMENT

摘要

Modern advances in encryption technology, such as the quantum key distribution method-using entangled photons to transmit secret keys~1-have begun a worldwide race to achieve truly unbreakable cryptography. In a world held captive by constantly emerging stories of cyber-attacks, national security breaches and government mass surveillance, issues involving privacy and communication technology are now at the forefront of cultural dialogue. Within the past several years, secure communication icons like Edward Snowden, Julian Assange and Anonymous have become household names, greatly influencing international politics and mainstream media. The key ingredient to many of these world-changing events is reliable encryption methods that allow information activists to securely and anonymously communicate anything from personal emails to top secret government files. Although issues related to encryption source code have been adjudicated in the federal court system with some positive results, the future of cryptography-specifically advances associated with quantum cryptography (quantum key distribution)-remains unsecured under both federal First Amendment2 jurisprudence and the United States (US) Export Administration Regulations (EAR). This Article will seek to illuminate the legal landscape surrounding encryption and suggest both judicial and regulatory clarifications to help ensure the future accessibility and use of quantum encryption technology. This Article will first provide a brief overview of how modern commercial encryption works, describing how it has advanced in recent years from fairly straightforward computer software to ultra-sophisticated methods of transmitting secret keys using the physics of quantum entanglement.3 Next, it will summarize key court decisions related to encryption and the First Amendment; namely, Junger v. Daley and Bernstein v. Department of Justice. This Article will then analyze the current regulatory framework for the export of quantum cryptography technologies under Category 5, Part 2 of the EAR's Commerce Control List. Finally, this Article will assess-in light of current EAR regulations and Junger v. Daley-whether the future development and potential widespread public use of quantum cryptographic technology in the US is at risk under the current judicial landscape/export regulatory regime and what changes are necessary to protect it.