How Quantum Risk Could Reshape Legal Obligations

Fitz Collings and Katie Hill published the article, "How Quantum Risk Could Reshape Legal Obligations," in Law360. The article explores how companies can better protect their trade secrets and whether delaying the migration to post-quantum cryptography could increase future litigation risk.

Recent federal executive action on quantum computing—Executive Order No. 14412, Securing the Nation Against Advanced Cryptographic Attacks; and Executive Order No. 14413, Ushering in the Next Frontier of Quantum Innovation—has largely been viewed through the lens of national security and cybersecurity. These orders, however, also raise an underexplored question for trade secret owners and their counsel.

Trade secret protection depends not only on the existence of valuable confidential information, but also on whether the owner employed “reasonable measures” to maintain its secrecy. Courts have long recognized that reasonable security measures evolve with technology and industry practice. As post-quantum cryptography standards mature and become increasingly adopted across both the public and private sectors, plaintiffs and defendants alike may eventually confront arguments that failing to prepare for foreseeable quantum-enabled cryptographic risks falls short of that evolving standard.

This article examines how recent federal quantum initiatives may influence future trade secret litigation—not by creating new legal obligations, but by shaping courts’ expectations of reasonable cybersecurity practices over time. After summarizing the Administration's recent executive orders and the broader transition toward post-quantum cryptography, the article also explores how in-house counsel, intellectual property lawyers, and cybersecurity professionals should begin incorporating quantum readiness into trade secret risk management before before legal standards fully catch up with technological change.

Read the full article.