Quantum Computing, Digital Constitutionalism, and the Right to Encryption: Perspectives from Brazil

Abstract

This article examines how the debates on a right to encryption, understood within the framework of digital constitutionalism, may be impacted by the development of quantum computing. An important question is how to ensure that fundamental rights and freedoms in the digital environment are adequately preserved, especially considering that the development of quantum capabilities is likely to occur in a disparate manner between developed and developing countries. For this reason, the article brings as an example the case of Brazil, a country that has a significant history of discussing digital rights and in which the issue of encryption is currently in debate before the Supreme Court. The paper is structured in three main parts, beginning with an overview of the discussions on the idea of a right to encryption within digital constitutionalism initiatives, particularly in Brazil. Next, the article examines how the development of quantum technologies may impact encryption, analyzing both technical and geopolitical repercussions of the race for quantum supremacy. Finally, it assesses the potential impacts of quantum computing on the enjoyment of fundamental rights in the digital environment and examines three different approaches: the development of post-quantum cryptography standards, the adjustment of domestic policies and further development of flexible legal and regulatory strategies, and global cooperation through binding and non-binding legal instruments. To conclude, the paper assesses the specific challenges faced by developing countries, such as Brazil, in connecting the debate on fundamental rights with the new technical and legal issues raised by emerging technologies.